Levatte v. City of Wichita Falls

• Court: Texas Court of Appeals
• Writing for the Court: Anne Gardner
• Citation: Levatte v. City of Wichita Falls, 144 S.W.3d 218 (Tex. App. 2004)
• Decision Date: 05 August 2004
• Docket Number: No. 2-03-269-CV.,2-03-269-CV.
• Parties: Johnny LEVATTE, Appellant v. The CITY OF WICHITA FALLS, Texas A Municipality, A Municipal Corporation, A Governmental Entity, Appellee.

144 S.W.3d 218

Johnny LEVATTE, Appellant v. The CITY OF WICHITA FALLS, Texas A Municipality, A Municipal Corporation, A Governmental Entity, Appellee.

No. 2-03-269-CV.

Court of Appeals of Texas, Fort Worth.

August 5, 2004.

Appeal from the 30th District Court, Wichita County, Bob Brotherton, J Rosendo Rodriguez, Jr., Witchita Falls, for Appellant.

City of Wichita Falls Legal Department and Julia M. Hipps Vasquez, Witchita Falls, for Appellee.

PANEL A: CAYCE, C.J.; GARDNER and McCOY, JJ.

OPINION

ANNE GARDNER, Justice.

In this appeal, Appellant Johnny Levatte argues in one issue that the trial court erred in granting the amended plea to the jurisdiction filed by Appellee The City of Wichita Falls, Texas ("City"). We will affirm.

I. Factual Background and Procedural History

On February 2, 1999, the City passed Ordinance No. 8-99 to demolish dangerous structures at 1702 Fairfax, lot 29A, Replat McKenzie Knight Addition, Less West 75 x 120' in Wichita Falls, Texas. Levatte, the owner of the property, filed a "petition for temporary injunction and further relief" on November 15, 1999. He also filed an "application for ex parte temporary restraining order" to prevent the demolition, which the trial court granted on November 15, 1999. On November 19, 1999, the City filed its original answer and plea to the jurisdiction, and following hearings on the plea, the court granted the City's plea. Levatte did not appeal that dismissal order.

On January 3, 2001, the City demolished the structures owned by Levatte at 1702 Fairfax. On December 30, 2002, Levatte filed a second suit against the City alleging that it had "illegally, arbitrarily and unconstitutionally" passed an ordinance authorizing the demolition of certain buildings and structures on his property and had bulldozed or caused to be bulldozed and destroyed these structures and buildings, damaging Levatte in excess of one hundred thousand dollars. Levatte alleged one cause of action:

VI. Cause of Action

Defendant, through its acts and omissions of January 3, 2001 in Wichita County, Texas violated Plaintiff's rights under the 5th and 14th Amendments to the United States Constitution which provides that no person shall be deprived of property without due process of law. Plaintiff's Constitutional rights were violated in the above regard and it was an unconstitutional taking of Plaintiff's property.

The City filed its original answer, plea to the jurisdiction, affirmative defenses, and motion for sanctions on January 27, 2003.

On March 12, 2003, the court conducted a hearing on the City's plea to the jurisdiction, at which the City argued that the previous suit had been dismissed because Levatte had not exhausted administrative remedies under Texas Local Government Code section 214.0012 before demolition by seeking review of the City Council's decision and that he was still required to exhaust those remedies after demolition of the property. See Tex. Loc. Gov't Code Ann. § 214.0012 (Vernon Supp.2004). Levatte argued that his current suit raised a new claim of the violation of his constitutional rights under the Fifth and Fourteenth Amendments of the United States Constitution that had not been litigated and that he was not required to exhaust administrative remedies to raise such a federal cause of action. The trial court asked both sides for further briefing on the issue of exhaustion of administrative remedies as a prerequisite to bringing a federal constitutional claim.

The City responded by filing an amended plea to the jurisdiction and a brief in support of that plea. The City characterized Levatte's claim under the Fifth and Fourteenth Amendments to the United States Constitution as being brought pursuant to section 1983 of title 42 of the United States Code. See 42 U.S.C. § 1983 (West 2003).¹ The City conceded that the United States Supreme Court held, in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 193-94 & n. 13, 105 S.Ct. 3108, 3120 & n. 13, 87 L.Ed.2d 126 (1985), that exhaustion of administrative remedies was not required before a party could assert such an action based on a "taking" without just compensation under the Fifth Amendment. But the City argued that the trial court still lacked jurisdiction based on the Supreme Court's further holding in Williamson County that a federal constitutional claim for a "taking" is not ripe until the property owner has availed himself of available state remedies to seek and obtain just compensation. Id. at 194-95, 105 S.Ct. at 3120-21. The City urged that Levatte's federal takings claim was not ripe because the previous suit filed prior to the demolition did not seek compensation and he retained an available state remedy for inverse condemnation pursuant to the Texas Constitution for just compensation for a "taking" of his property, which he had not pursued. See Tex. Const. art. I, § 17. Levatte did not respond to the City's plea or brief.

Thereafter, on July 16, 2003, the trial court conducted a hearing on the City's amended plea to the jurisdiction. The City presented its arguments to the court, again urging that Levatte's suit was not ripe and, therefore, that the trial court lacked jurisdiction because he had not sought compensation through an inverse condemnation claim under state law. The attorney for the City acknowledged at the hearing that case law provided three ways for Levatte to proceed: by filing a state court suit asserting both state and federal "takings" claims in the same suit, by filing a separate state "takings" action for inverse condemnation first, or by filing two suits and having the federal claim abated until the state constitutional claim had been concluded.

Levatte requested that he be given the opportunity to amend his pleadings and to respond before the trial court dismissed the case. The trial court asked the City to provide further briefing, and it gave Levatte until August 11, 2003 to research the City's arguments and to respond. The City filed a letter brief on July 30, 2003 and provided a hand-delivered copy of the brief to Levatte's counsel, but Levatte did not respond to the letter brief or amend his pleadings. On August 13, 2003, the trial court granted the City's amended plea to the jurisdiction.

II. Trial Court's Subject Matter Jurisdiction

A. Standard of Review

"Ripeness is an element of subject matter jurisdiction." Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999). "Subject matter jurisdiction is never presumed and cannot be waived." Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993). The question of subject matter jurisdiction is a legal question, which we review de novo. Mayhew, 964 S.W.2d at 928. The absence of subject matter jurisdiction may be raised by a plea to the jurisdiction, as the City has done in this case. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 232 (Tex.2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000).

B. Plea to the Jurisdiction

A plea to the jurisdiction is a dilatory plea by which a party challenges a court's authority to determine the subject matter of an action. Bland, 34 S.W.3d at 554. The purpose of a dilatory plea is not to force the plaintiff to preview his or her case on the merits but to establish a reason why the merits should never be reached. Id. Thus, our task is not to decide the merits of Levatte's case but rather to examine the claim in his pleadings, taking as true the facts pled, to determine whether those facts support jurisdiction in the trial court. See Penley v. Westbrook, No. 2-02-260-CV, ___ S.W.3d ___, ___, 2004 WL 1119361, at *5 (Tex.App.-Fort Worth May 20, 2004, no pet. h.).

"When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Miranda, 133 S.W.3d at 226; see also Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex.2001); Bland, 34 S.W.3d at 555. We must construe the pleadings in the plaintiff's favor and look to the pleader's intent. Miranda, 133 S.W.3d at 226; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989).

C. Application of the Law to the Facts

In one issue, Levatte complains that the trial court erred in granting the City's amended plea to the jurisdiction. The City asserts that, because Levatte failed to seek just compensation through an inverse condemnation action under Texas law or to assert that such procedures were unavailable or inadequate, Levatte's federal takings claim against the City is not ripe under Williamson, 473 U.S. at 194-95, 105 S.Ct. at 3120-21. Thus, the City argues that the trial court properly dismissed Levatte's federal takings claim for lack of jurisdiction. Levatte contends that his pre-demolition lawsuit, which was filed and disposed of by dismissal in the district court in 1999, constituted a sufficient request for and denial of just compensation for the alleged wrongful taking of Levatte's property before the demolition.

Because the City challenged Levatte's pleadings and not the existence of jurisdictional facts, we examine his petition to determine whether it contains sufficient facts to affirmatively demonstrate the trial court's jurisdiction. See Miranda, 133 S.W.3d at 226; see also Mayhew, 964 S.W.2d at 928; Coble v. City of Mansfield, 134 S.W.3d 449, 458 (Tex.App.-Fort Worth 2004, no pet.).

The Fifth Amendment of the United States Constitution states, "[N]or shall private property be taken for public use without just compensation" and is made applicable against the states via the Fourteenth Amendment. U.S. Const. amends. V, XIV; Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 239, 241, 17 S.Ct. 581, 585-86, 41 L.Ed. 979 (1897).² In Williamson County, ...