City of Hous. v. James

• Decision Date: 04 December 2012
• Docket Number: No. 14–11–00352–CV.,14–11–00352–CV.
• Citation: 393 S.W.3d 350
• Parties: CITY OF HOUSTON, Appellant v. James & Elizabeth CARLSON, Jose & Liz Referente, Roger Campodonico, Sergio A. Lopez, Yan Wang & Hui Yao, Daniel & Andrea Seluk, Robert Hutchins, Robert & Kelly Farfan, Bonnie Corbett, Helen Pagola, and Manny Espinola, Appellees.
• Court: Texas Court of Appeals

393 S.W.3d 350

CITY OF HOUSTON, Appellant

v.James & Elizabeth CARLSON, Jose & Liz Referente, Roger Campodonico, Sergio A. Lopez, Yan Wang & Hui Yao, Daniel & Andrea Seluk, Robert Hutchins, Robert & Kelly Farfan, Bonnie Corbett, Helen Pagola, and Manny Espinola, Appellees.

No. 14–11–00352–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Dec. 4, 2012.

Judith Lee Ramsey, Hope E. Hammill–Reh, Houston, for Appellant.

Sean Cody, William C. Ferebee, Michael L. Landrum, Houston, for Appellees.

Panel consists of Chief Justice HEDGES and Justices JAMISON and McCALLY.

SUBSTITUTE OPINION

MARTHA HILL JAMISON, Justice.

The opinion of August 23, 2012 is withdrawn, and this opinion is substituted in its place.

Appellant City of Houston appeals from the district court's denial of the City's motion for judgment and the entry of judgment reversing the City's order requiring appellees to vacate their property. In three issues, the City argues the district court erred in reversing the City's order to vacate and entering final judgment in favor of appellees because (1) the district court did not have jurisdiction over appellees' claims against the City, (2) the City did not deprive appellees of their procedural and substantive due process rights under the United States and Texas Constitutions when it ordered appellees to vacate their property, and (3) the district court improperly substituted its judgment for that of the administrative hearing officer who affirmed the order to vacate. We affirm.

BACKGROUND

Appellees own condominium units in the Park Memorial complex in Houston. In July 2008, a Park Memorial condominium unit owner sent a letter to the City urgently requesting the City to inspect the property because his insurer would not insure his unit due to structural problems at Park Memorial.¹ He attached an engineer's report in which the engineer opined, “The buildings are too unsafe to be inhabited.... The buildings are worsening and may experience catastrophic failure at any time.” In response, the City conducted an investigation and discovered none of the buildings in the Park Memorial complex had certificates of occupancy, which was a required prerequisite to occupy the complex under City ordinance.² On July 16, the City posted a notice at the complex that stated, “The City of Houston Building Code requires a Certificate of Occupancy to be posted in a conspicuous place on the premises of all commercial buildings.” ³ The notice gave property owners ten days to apply for certificates of occupancy and warned that “[f]ailure to comply with th[e] notice may subject [the property owners] to a municipal court citation.” The same day, the City inspected the parking garage and posted a notice designating the buildingas an unsafe “Restricted Area” and prohibiting anyone from parking inside, walking into, or occupying the building.

On July 24, the City inspected the complex and found many violations of building, electrical, and plumbing codes. The City red-tagged several plumbing and electrical hazards. On July 29, the City's building official posted a notice addressed to “occupants, renters, residents and/or owners of the [complex]” finding that three of the buildings in the complex “pose a serious and immediate hazard to the occupants” and “encouraging every resident to seek shelter elsewhere.”

The City subsequently contracted with David Collins, a structural engineer, to conduct an independent investigation of the structural integrity of the buildings in the complex. On August 1, Collins reported as follows:

After reviewing and evaluating the conditions of all the buildings, it is our professional opinion that the units are unsafe. The wood structural members have lost [their] structural integrity. The members are water logged, dry rotted and termite infected. Steel members are corroding and have deteriorated.

The parking garage area where the beam(s) have totally deteriorated should not be occupied by cars and/or tenants.... The buildings appear to be structurally sound but in observing the main structural members of any of the buildings; [sic] there are serious damages and danger of walls and entire building[s] collapsing.

After reviewing Collins's report, the City issued an order on August 15 directing all Park Memorial residents to vacate all Park Memorial buildings by September 15.

The City sent a letter to Park Memorial's residents on August 20 informing them of their right under City of Houston Building Code section 116 to request an administrative hearing to contest the August 15 order to vacate. The City held an administrative hearing on September 9, and the administrative hearing officer affirmed the order to vacate in a letter dated September 10. On September 11, the City extended the deadline to vacate the property until September 22 due to the approach of Hurricane Ike, and on September 19, the City again extended the deadline until October 1 because Hurricane Ike “reduced the availability of temporary housing in the Houston area.”

Appellees timely filed a petition for writ of certiorari in district court on October 1 seeking judicial review of the order to vacate.⁴SeeTex. Local Gov't Code § 214.0012(a) (“Any owner, lienholder, or mortgagee of record of property jointly or severally aggrieved by an order of a municipality issued under Section 214.001 may file in district court a verified petition setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality.”). Appellees also requested a temporary restraining order and a temporary injunction. The district court signed an order on October 1 granting appellees' request for a temporary restraining order.

The City filed a plea to the jurisdiction on October 8. The district court denied appellees' request for a temporary injunction in an order signed October 31 and granted the City's plea to the jurisdiction in an order signed November 7. The property owners timely appealed, challenging the district court's order granting the City's plea to the jurisdiction. We reversed, finding the property owners' pleading contained sufficient facts to affirmativelydemonstrate the district court's jurisdiction under section 214.0012, and remanded for proceedings consistent with our opinion. See Carlson v. City of Houston, 309 S.W.3d 579, 589 (Tex.App.-Houston [14th Dist.] 2010, no pet.).

On remand, the City filed a motion for summary judgment, and appellees filed a motion for final judgment. On August 27, 2010, the district court held a hearing pursuant to section 214.0012. SeeTex. Local Gov't Code § 214.0012(f) (“Appeal in the district court shall be limited to a hearing under the substantial evidence rule. The court may reverse or affirm, in whole or in part, or may modify the decision brought up for review.”). The district court signed a final judgment on September 17 reversing the order to vacate. The City filed a motion for new trial, requesting to “better establish the record” for appeal, which the district court granted. The City then filed a cross-motion for judgment and response to appellees' motion for judgment. On March 18, 2011, the district court denied the City's cross motion and signed a second final judgment reversing the order to vacate.

DISCUSSION

The City appeals the district court's judgment on three grounds, asserting that (1) the district court lacked jurisdiction over nine of the appellees because they did not verify the petition filed in district court and the district court lost jurisdiction over the remaining appellees because they did not verify their amended petition; (2) the City did not deprive appellees of their rights to procedural and substantive due process by ordering appellees to vacate their property before conducting a hearing; and (3) the City presented substantial evidence to support the administrative hearing officer's decision affirming the order to vacate. We hold that the district court did not err in reversing the order to vacate because it had jurisdiction under section 214.0012 and the City deprived appellees of their right to procedural due process.

I. Jurisdiction

The City argues that a district court does not have jurisdiction over an action filed pursuant to Local Government Code section 214.0012 unless a verified petition for writ of certiorari is filed.⁵ Since only seven of the sixteen appellees verified their petition, the City reasons that the district court did not have jurisdiction over the claims of the remaining nine appellees. The City also argues that the district court lost jurisdiction over all of appellees' claims when none of the appellees verified their amended petition. Appellees respond that defects in verification are not jurisdictional and, even if they were, verification by all the appellees was not required under Section 214.0012 to invoke the district court's jurisdiction. We hold a defect in verification under Section 214.0012 is not jurisdictional and the City waived any complaint regarding defects in verification by not specially excepting.

Under section 214.001, “[a] municipality may, by ordinance, require the vacation, relocation of occupants, securing, repair, removal, or demolition of a building that is ... dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare[.]” Id.§ 214.001(a)(1). Section 214.0012 provides the mechanism by which a property owner may appeal a municipality's decision to take any of the actions authorized by section 214.001: “Any owner, lienholder, or mortgagee of record of property jointly or severally aggrieved by an order of a municipality issued under Section 214.001 may file in district court a verified petition setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality.” Id. § 214.0012(a).

The Texas Supreme Court has not addressed whether filing a petition—verified or otherwise—under section 214.0012 invokes a...