City of Hous. v. Carlson

• Decision Date: 19 December 2014
• Docket Number: No. 13–0435,13–0435
• Parties: City of Houston, Petitioner, v. James & Elizabeth Carlson, et al., Respondents
• Court: Texas Supreme Court

451 S.W.3d 828

City of Houston, Petitioner
v.
James & Elizabeth Carlson, et al., Respondents

No. 13–0435

Supreme Court of Texas.

Argued September 18, 2014
OPINION DELIVERED: December 19, 2014
Rehearing Denied January 30, 2015

Sean Cody, Law Offices of Sean Cody, Houston, for Intervenor.

John B. Wallace, Senior Assistant City Attorney, Judith Lee Ramsey, Chief, General Litigation Section, David M. Feldman, Hope E. Hammill-Reh, Lynette Fons, City of Houston Legal Department, Houston, for Petitioner.

Robert G. Miller, William C. Ferebee, O'Donnell, Ferebee, Medley & Frazier P.C., Houston, for Respondent.

Opinion

Justice Brown delivered the opinion of the Court.

A group of former condominium owners brings this inverse-condemnation action against the City of Houston, alleging their property was taken when the city ordered residents to vacate the condominium complex. The trial court sustained a plea to the jurisdiction after concluding the owners had not alleged a taking. The court of appeals reversed, and we granted the city's petition for review. Having considered the record and relevant law, we agree with the trial court that the claim must be dismissed.

I

In 2007, a private dispute arose among members of a homeowners association. Park Memorial was a 108–unit condominium complex located in the Rice Military area of Houston. The complex was suffering from an increasing number of cosmetic and structural problems, and the condominium owners disagreed as to how best to address those issues. A majority wanted to market the entire property for redevelopment, but a few refused to sell. In July of 2008, one owner—in an apparent effort to encourage action—informed the City of Houston of certain safety concerns.

The city's subsequent investigation revealed various alleged structural, electrical, and plumbing problems. Of primary concern was evidence that an underground parking facility might fail, posing serious risk to the dozens of units located above the garage. Although the respondents fervently deny that the condominiums were unsafe, the record includes numerous photographs documenting various code violations.

After reviewing the results of its investigation, the city declared the condominiums uninhabitable. Officials posted the following notice throughout the complex:

NOTICE

Public Works & Engineering Department / Code Enforcement

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.

....

451 S.W.3d 830

THIS NOTICE WILL ALLOW 10 BUSINESS DAYS FOR YOU TO APPLY FOR A CERTIFICATE OF OCCUPANCY

....

Failure to comply with this notice may subject you to a municipal court citation.

The condominium owners did not apply for an occupancy certificate and did not make the requisite repairs.

After a month passed without compliance, the city opted not to issue a citation. Instead, the city ordered all residents to vacate the complex within thirty-one days. SeeHouston, Tex., Bldg. Code § 104.12 (2008) (authorizing officials to “order the use discontinued immediately” where a structure “creates a serious and immediate hazard”). At the request of residents and owners, the city conducted an administrative hearing, but then upheld the order to vacate. By December of 2008, all residents had vacated the complex.

After extensive litigation, sixteen property owners—the same owners appearing as the respondents here—ultimately obtained a permanent injunction in March of 2011 when a district court concluded the owners were not afforded due process of law. That court reversed the order to vacate, and a court of appeals affirmed. See generally City of Houston v. Carlson, 393 S.W.3d 350 (Tex.App.–Houston [14th Dist.] 2012, no pet.) (holding that the owners had been denied adequate hearing and that the city had failed to follow its own rules). The parties did not seek our review of that decision. Once the order to vacate was lifted, the homeowners association sold the complex for redevelopment.

The group of owners that filed the due-process claim later brought this inverse-condemnation action, alleging that their property was taken when residents were forced to vacate. They seek compensation for years of lost use and for other unspecified damages. The trial court sustained the city's plea to the jurisdiction, concluding that the owners had not alleged a taking. The court of appeals reversed, and the city timely filed a petition for review.

II

A municipal government enjoys immunity from suit unless its immunity has been waived. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006) (citation omitted). Without this waiver, courts have no jurisdiction to adjudicate any claim against the municipality. Id. It is well settled that the Texas Constitution waives government immunity with respect to inverse-condemnation claims. City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex.2011). Nevertheless, such a claim is predicated upon a viable allegation of taking. Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex.2012) (citation omitted). “In the absence of a properly pled takings claim, the state retains immunity.” Id. (citation omitted). Under such circumstances, a court must sustain a properly raised plea to the jurisdiction. See id. at 491–92 (dismissing case for lack of jurisdiction after concluding plaintiff had not alleged a taking). With respect to this case, the trial court and court of appeals disagree as to whether the respondents have alleged any taking of property. We review jurisdiction and sufficiency of the pleadings de novo. See id. at 476.

The right to acquire and maintain private property is among our most cherished liberties. As Locke explained, the value of private property lies not only in its objective utility, but also in any personal investment therein. SeeJohn Locke, Two Treatises of Government 134 (Thomas I. Cook ed., Hafner Press 1947) (1689). Accordingly,

451 S.W.3d 831

the right to undisturbed enjoyment of residential property is all the more sacred. The unique importance of the home is reflected in our Bill of Rights, which protects us from uncompensated dispossession, unwarranted search, and unwanted guests. See U.S. Const. amends. III, IV, V. This Court, in particular, has long recognized the undisturbed enjoyment of private property as “a foundational liberty, not a contingent privilege.” Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline–Texas, LLC, 363 S.W.3d 192, 204 n.34 (Tex.2012).

The preservation of these property rights is “one of the most important purposes of government.” Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex.1977). But government has other obligations as well, including ensuring the safety and security of its citizenry. See Kelley v. Johnson, 425 U.S. 238, 247, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) (referring to “safety of persons and property”). To satisfy its responsibilities, government often imposes restrictions on the use of private property. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 125, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (recognizing that regulations are used to promote “health, safety, morals, [and] general welfare”) (citation omitted). Although these restrictions sometimes result in inconvenience to owners, government is not generally required to compensate an owner for associated loss. “Government hardly could go...