Hdw2000 256 East 49th St. LLC v. City Of Houston, CIVIL ACTION NO. H-10-70

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
PartiesHDW2000 256 EAST 49TH STREET LLC, et al, Plaintiffs, v. CITY OF HOUSTON, Defendant.
Docket NumberCIVIL ACTION NO. H-10-70
Decision Date22 February 2011

HDW2000 256 EAST 49TH STREET LLC, et al, Plaintiffs,



DATED: February 22, 2011


Pending before the Court is Defendant The City of Houston's ("Houston") Motion for Partial Summary Judgment on Plaintiffs' Due Process Claims (Doc. 32), as well as Plaintiffs HDW2000 256 East 49th Street LLC ("HDW") and Westbury, Inc.'s ("Westbury") response (Doc. 38). Upon review and consideration of this motion, the response thereto, the relevant legal authority, and for the reasons explained below, the Court finds that Houston's motion for partial summary judgment should be granted and the case remanded to state court.

I. Background and Relevant Facts

This case involves a petition for judicial review of an order of Houston's Building and Standards Commission regarding several commercial buildings in Houston. Plaintiffs HDW and Westbury own several commercial properties at Westbury Square, located near the intersection of Chimney Rock Road and West Belfort Road in Houston. (Doc. 1-11 at 2.)

On May 29, 2008, Houston's Building and Standards Commission (the "Commission") issued a notice requesting HDW's and Westbury's presence at a hearing to present evidence in response to alleged deficiencies and poor conditions at three of their buildings located at Westbury Square. (Id.) The notice alleged deficiencies and building code violations at buildings

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numbered one, five and eleven. (Id. at 10-20.) At the hearing on June 18, 2008, counsel for Houston, HDW, and Westbury appeared and presented evidence. (Id. at 2.)

On June 23, 2008, the Commission issued its decision and order. (Id. at 3; Doc. 1-2.) The Commission concluded that the properties in question were "dangerous, substandard and in violation of the terms of Section 10-361 and 10-343 of the City of Houston Code of Ordinances" and ordered Plaintiffs "to obtain City Building repair permits within ten days from the date of the Order, [and] to repair the deficiencies which make the structures dangerous within thirty days of the date of the Order." (Doc. 1-11 at 3; Doc. 1-2 at 3.) The Commission warned that in the event Plaintiffs failed to comply, "the City of Houston shall be authorized to remedy, alleviate or remove any substandard or dangerous building and that liens may be placed on the properties should the City take any such measures." (Id. at 3-4, Exh. B.)

Plaintiffs urge that:

The Orders further fail to consider the exigent circumstances relating to these buildings due to damages caused by Hurricane Rita. Insurance claims are still pending and the owners have not had the resources to make major repairs due to the delays in resolving these insurance claims. Where the buildings were damaged to the extent that they could not be occupied, the buildings were vacated and adequately secured. They present no danger to the occupants of the buildings or others. Additionally, the vacant units in all occupied buildings and unoccupied buildings have been secured by deadbolts on the doors, or other methods which made them secure from unauthorized entry, broken window glass replaced or otherwise secured and exterior penetrations of the buildings have been sealed and secured. All of these steps protect the residents in those buildings from unauthorized entry and the buildings are not dangerous to the residents who occupy them.

The Orders further fail to consider the owner's progress and on going plans to restore the premises to acceptable standard.

(Id. at 5.)

On July 18, 2008, HDW and Westbury filed a petition for judicial review in the 113th Judicial District Court of Harris County, Texas, requesting review of the Commission's order

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pursuant to Texas Gov't Code § 54.039. (Id. at 7.) Plaintiffs' petition for judicial review under Chapter 54 and 214 of the Texas Gov't Code stayed enforcement of the order pursuant to Chapter 10 §§ 10-372 and 10-394 of Houston's Code. In their amended petition, Plaintiffs alleged that the findings of the Commission lacked factual and legal support, and that the hearing had violated their substantive and procedural due process rights under the Fourteenth Amendment of the United States Constitution and the Texas Constitution. (Doc. 1-11 at 7.)

On January 7, 2010, Houston removed the case to this Court pursuant to 28 U.S.C. §§ 1331, 1343, and 1441. (Doc. 1.) Houston now moves for partial summary judgment on Plaintiffs' procedural and substantive due process claims. (Doc. 32 at 1-2.)

II. Standard of Review

A party moving for summary judgment must inform the court of the basis for the motion and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The substantive law governing the suit identifies the essential elements of the claims at issue and therefore indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The initial burden falls on the movant to identify areas essential to the nonmovant's claim in which there is an "absence of a genuine issue of material fact." Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005). If the moving party fails to meet its initial burden, the motion must be denied, regardless of the adequacy of any response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Moreover, if the party moving for summary judgment bears the burden of proof on an issue, either as a plaintiff or as a defendant asserting an affirmative defense, then that party must

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establish that no dispute of material fact exists regarding all of the essential elements of the claim or defense to warrant judgment in his favor. Fontenot v. Upjohn, 780 F.2d 1190, 1194 (5th Cir. 1986) (the movant with the burden of proof "must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor") (emphasis in original).

Once the movant meets its burden, however, the nonmovant must direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Instead, the nonmoving party must produce evidence upon which a jury could reasonably base a verdict in its favor. Anderson, 477 U.S. at 248; see also DIRECTV Inc. v....

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