Kinnison v. City of San Antonio

• Decision Date: 21 July 2010
• Docket Number: Civil Action No. SA-08-CV-421-XR
• Citation: 727 F.Supp.2d 548
• Parties: Paul Chance KINNISON, Plaintiff, v. CITY OF SAN ANTONIO, J. Barry Archer, Individually and in his official capacity as Development Services Director for the City of San Antonio, Mike Constantino, Individually and in his official capacity as Development Services Manager for the City of San Antonio, and Reyes Hernandez, Individually and in his official capacity as Supervisor of the Dangerous Premises Department of the City of San Antonio's Department of Code Compliance, Defendants.
• Court: U.S. District Court — Western District of Texas

727 F.Supp.2d 548

Paul Chance KINNISON, Plaintiff,
v.
CITY OF SAN ANTONIO, J. Barry Archer, Individually and in his official capacity as Development Services Director for the City of San Antonio, Mike Constantino, Individually and in his official capacity as Development Services Manager for the City of San Antonio, and Reyes Hernandez, Individually and in his official capacity as Supervisor of the Dangerous Premises Department of the City of San Antonio's Department of Code Compliance, Defendants.

Civil Action No. SA-08-CV-421-XR.

United States District Court,
W.D. Texas,
San Antonio Division.

July 21, 2010.

727 F.Supp.2d 550

Daniel R. Rutherford, Rutherford & Rutherford, PLLC, S. Tyler Rutherford, Rutherford Rutherford & Bettersworth, San Antonio, TX, for Plaintiff.

Judith D. Sanchez, Office of the City Attorney, Benjamin C. Nichols, Gonzales Hoblit Ferguson, LLP, Nathan Mark Ralls, Hoblit Ferguson Darling, LLP, San Antonio, TX, for Defendants.

ORDER ON MOTION FOR SUMMARY JUDGMENT

XAVIER RODRIGUEZ, District Judge.

On the date, the Court considered Defendants J. Barry Archer, Mike Constantino, and Reyes Hernandez's Second Motion for Summary Judgment (Docket No. 99), Plaintiff's Motion for Summary Judgment (Docket No. 100), Defendant City of San Antonio's Second Motion for Summary Judgment (Docket No. 101), the Defendants' objections and motion to exclude the affidavit attached to Plaintiff's response (Docket No. 107), and the responses and replies thereto. The individual Defendants' motion is GRANTED, the Defendant City's motion is GRANTED IN

727 F.Supp.2d 551

PART AND DENIED IN PART, and the Plaintiff's motion is GRANTED IN PART AND DENIED IN PART. Defendants' motion to exclude the testimony of Paul Kinnison, Jr. is GRANTED.

Background

The facts of this case were provided in the Court's previous orders on summary judgment. In its Order on Summary Judgment issued on March 8, 2010, 2010 WL 890145, the Court wrote:

This case involves the demolition of two structures at 332 E. Myrtle Street, in San Antonio, [Bexar County,] Texas. Plaintiff Paul Chance Kinnison purchased the property from Deepak Land Trust [on April 9, 2008] and, in his pleading, states he intended to renovate and live in the property.¹

On or about April 8, 2008, Alice Guajardo, a Code Enforcement Officer for Defendant City of San Antonio, inspected the house at 332 E. Myrtle Street. The inspection was in response to a telephone call to the City's non-emergency customer service system regarding a dangerous premises. Guajardo found the house on the property to be unsecured and vacant, and she declare[d] that the house posed a danger to the public. She state[d] that there was fire damage and deterioration to the home's foundation, exterior walls, and roof system, and the foundation was separating from beams, floor joists, rotting sills, and leaning piers. Guajardo prepared the necessary documents to have the property demolished.² She contacted Richard Brownlee, trustee of the Deepak Land Trust, which was listed as the owner of record. Guajardo claims that Brownlee told her that the property had been sold, but he could not identify the [new] owner.

At Guajardo's request, City Senior Building Inspector Ramiro Carrillo inspected the property on April 10, 2008. Carrillo found the foundation, walls, and roof to be in poor structural condition, and he deemed the house and its accessory structure an imminent threat to life, safety, and/or property. Carrillo recommended that the house be demolished to Defendant J. Barry Archer, Acting Director of the Development Services Department. Archer reviewed the materials submitted by Carrillo and accepted his recommendation on April 10, 2008.
Carrillo then recommended that both the house and accessory structure be scheduled for emergency demolition to Roderick J. Sanchez, Director of the City's Development Services Department. Sanchez reviewed the materials submitted by Carrillo and accepted his recommendation. On April 15, 2008, Sanchez declared:

727 F.Supp.2d 552

Due to the extensive damage and its unsafe structural condition, it was my determination that the main and accessory structures located at 332 E. Myrtle presented a clear and imminent threat to life, safety, and/or property necessitating an immediate demolition. In my judgment, no other abatement procedure was reasonably available under these circumstances.

On April 16, 2008, Director of Housing and Neighborhood Services David D. Garza concurred [with] the assessment that the structures at 332 E. Myrtle presented a clear and imminent threat to life, safety, and/or property necessitating an immediate demolition.

On April 17, 2008, the City demolished the house and accessory structure. Kinnison received a telephone call from Mr. Cuellar of Cuellar Foundation, which had been contracted by Kinnison to repair the foundation of the house and had begun repairing the property on April 16, 2008. While Mr. Cuellar was present, the City's demolition crew arrived and demolished the house and accessory structure. City records do not indicate a permit or application for foundation work was obtained for the property. On April 28, 2008, the City sent post-demolition written notice to the Deepak Land Trust, which was listed as the owner of record for the property.

Kinnison claims the demolition of the property violated the procedures established in Article VIII, Section 6-175 of the City of San Antonio Code of Ordinances ("the ordinance").³ (The City amended the ordinance in October 2008.) Kinnison filed suit against the City of San Antonio; J. Barry Archer, individually and in his official capacity as Acting Director of the Development Services Department; Michael Constantino, individually and in his official capacity as Development Services Manager in the Planning and Development Services Department; and Reyes Hernandez, individually and in his official capacity as Supervisor of the Dangerous Premises Section for the City of San Antonio

727 F.Supp.2d 553

Housing and Neighborhood Services Department. Kinnison asserted multiple causes of action, including violation of Section 6-175 of the City's Code of Ordinances; violation of Chapter 214 of the Texas Local Government Code; violations of Article I, Sections 17 and 19 of the Texas Constitution; violations of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution; "injury by motor vehicle of equipment"; trespass to real property; intrusion on seclusion; and a request for declaratory relief.

Procedural History

Kinnison filed suit against the City, Archer, Constantino, and Hernandez in the 73rd Judicial District Court of Bexar County, Texas.⁴ Defendants timely removed this case.⁵ The live pleading is Plaintiff's First Amended Complaint.⁶

The Court dismissed certain claims against the individual defendants ⁷ and dismissed certain claims against the City after considering the Court's jurisdiction in this matter.⁸ The Court granted the individual Defendants' motion for summary judgment and granted in part and denied in part the City's motion to dismiss state claims against them.⁹ Defendant City of San Antonio's motion for summary judgment was granted in part and denied in part.¹⁰ The parties were ordered to provide the Court with cross motions for summary

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judgment as to the remaining claims. ¹¹

The individual Defendants, Defendant City of San Antonio, and Plaintiff moved for summary judgment on June 7, 2010, on the remaining claims in this case.¹² The parties have filed their responses, which include Defendants' objections to Plaintiff's exhibits and motion to exclude an affidavit attached to one of Plaintiff's responses.¹³

Legal Standard

Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden is on the moving party to show that "there is an absence of evidence to support the nonmoving party's case." Freeman v. Tex. Dep't of Criminal Justice, 369 F.3d 854, 860 (5th Cir.2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). "[I]f the movant bears the burden of proof on an issue .., he must establish beyond peradventure all of the essential elements of the ... [claim] to warrant judgment in his favor." Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir.2002) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986)) (first ellipses and bracket added).

Once the moving party meets its initial burden, the nonmoving party "must ... set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.1994). To avoid summary judgment, the nonmoving party must adduce admissible evidence that creates a fact issue concerning the existence of every essential component of that party's case and unsubstantiated assertions of actual dispute will not suffice. Thomas v. Price, 975 F.2d 231, 235 (5th Cir.1992). The opposing party cannot establish a genuine issue of material fact by resting on the mere allegations of the pleadings. Hulsey v. State of Texas, 929 F.2d 168, 170 (5th Cir.1991). The Court reviews all facts in the light most favorable to the nonmoving party. First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 181 (5th Cir.2009).

Analysis

Kinnison's remaining claims against the individual Defendants are: (1) violation of the city ordinance; (2) violation of Chapter 214 of the Texas Local Government Code; and (3) violations of the Texas Constitution.

727 F.Supp.2d 555

Kinnison's remaining claims against the City are: (1) violation of Section 214.001 of the Texas Local Government Code; (2) violation of Article I, Section 17 of the Texas Constitution; (3) violation of procedural due process...