Lindig v. City of Johnson City, No. 03-08-00574-CV (Tex. App. 8/11/2009)

• Decision Date: 11 August 2009
• Docket Number: No. 03-08-00574-CV.,03-08-00574-CV.
• Parties: WILLIAM L. LINDIG AND PEGGY L. LINDIG, Appellants, v. CITY OF JOHNSON CITY, DAVID DOCKERY, INDIVIDUALLY AND IN HIS CAPACITY AS CITY MANAGER/CITY ADMINISTRATOR OF THE CITY OF JOHNSON CITY, PETER MCKINNEY, INDIVIDUALLY AND IN HIS CAPACITY AS BUILDING OFFICIAL OF THE CITY OF JOHNSON CITY, RHONDA STELL, IN HER CAPACITY AS MEMBER OF BOARD OF ADJUSTMENT OF THE CITY OF JOHNSON CITY, JAMES STEVENSON, IN HIS CAPACITY AS MEMBER OF BOARD OF ADJUSTMENT OF THE CITY OF JOHNSON CITY, RALPH MOSS, IN HIS CAPACITY AS MEMBER OF BOARD OF ADJUSTMENT OF THE CITY OF JOHNSON CITY, AND ALICE DUNCAN, IN HER CAPACITY AS MEMBER OF BOARD OF ADJUSTMENT OF THE CITY OF JOHNSON CITY, Appellees.
• Court: Texas Court of Appeals

Page 1

WILLIAM L. LINDIG AND PEGGY L. LINDIG, Appellants, v. CITY OF JOHNSON CITY, DAVID DOCKERY, INDIVIDUALLY AND IN HIS CAPACITY AS CITY MANAGER/CITY ADMINISTRATOR OF THE CITY OF JOHNSON CITY, PETER MCKINNEY, INDIVIDUALLY AND IN HIS CAPACITY AS BUILDING OFFICIAL OF THE CITY OF JOHNSON CITY, RHONDA STELL, IN HER CAPACITY AS MEMBER OF BOARD OF ADJUSTMENT OF THE CITY OF JOHNSON CITY, JAMES STEVENSON, IN HIS CAPACITY AS MEMBER OF BOARD OF ADJUSTMENT OF THE CITY OF JOHNSON CITY, RALPH MOSS, IN HIS CAPACITY AS MEMBER OF BOARD OF ADJUSTMENT OF THE CITY OF JOHNSON CITY, AND ALICE DUNCAN, IN HER CAPACITY AS MEMBER OF BOARD OF ADJUSTMENT OF THE CITY OF JOHNSON CITY, Appellees.

No. 03-08-00574-CV.

Court of Appeals of Texas, Third District, Austin.

Filed: August 11, 2009.

Appeal from the District Court of Blanco County, 424th Judicial District, No. CV06530, Honorable Daniel H. Mills, Judge Presiding.

Affirmed in Part, Reversed and Remanded in Part.

Before Chief Justice JONES, Justices PURYEAR and HENSON.

MEMORANDUM OPINION

J. WOODFIN JONES, Chief Justice.

Appellee City of Johnson City sued appellants William L. Lindig and Peggy L. Lindig seeking a temporary injunction and civil penalties after the Lindigs continued construction on their Blanco County property without obtaining a building permit from the City. The Lindigs counterclaimed against the City, the Board of Adjustment, and various City officials challenging the validity of the building-permit-fee ordinance and seeking damages against the City and the City officials for an unconstitutional taking and civil conspiracy. The district court dismissed the Lindigs' claims against the City and the individual defendants for lack of subject-matter jurisdiction. We will affirm the trial court's order of dismissal in part and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2007, the Lindigs applied for a permit in order to conduct "residential remodeling" construction work on their residence. According to William Lindig, he filled out the application at City Hall and was told by the City secretary that he could begin the project. The following month, Peter McKinney, the City's Building Official, acted on the Lindigs' application and set the building permit fee at $1,000, based on his determination that the project should be treated as "new construction" in accordance with section 06-015 of the City's Code of Ordinances. The Lindigs refused to pay the fee, and the City issued a stop-work order.

City's District Court Suit

The City then filed suit in Blanco County district court seeking a temporary restraining order and temporary and permanent injunctive relief against further construction, alleging that the Lindigs had refused to obey the City's orders to cease all work until a building permit was issued. See Tex. Loc. Gov't Code Ann. §§ 54.012(1) (municipality may bring civil action for enforcement of ordinance relating to materials or methods used to construct buildings), .016 (injunctive relief) (West 2008). The City also sought civil penalties for the Lindigs' violation of the stop-work order. See id. § 54.017 (West 2008). The Lindigs answered by alleging that the City was "barred as a matter of law from enforcing the Code provisions by the principles of estoppel and waiver. Further, the City has waived enforcement of the building permit by failing to enforce other similar violations of which the City Officials have knowledge or should have knowledge." The Lindigs also counterclaimed against the City, asserting that they were entitled to the following relief:

• •Under the Texas Uniform Declaratory Judgment Act, see Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 2008), declarations that (i) the City's building-fee-permit ordinance is invalid, void, unenforceable, and unconstitutional as it relates to permit fees charged for residential remodel construction jobs, including the Lindig project; (ii) the City must refund all residential remodel permit fees illegally procured under the void ordinances; and (iii) the City's stop-work order was illegal, void, and unenforceable;

• •Temporary and permanent injunctions restraining the City from charging and procuring illegal building permit fees for residential remodel projects, performing future illegal acts, and refusing to allow the Lindigs to continue construction at their residence;

• •Damages against Peter McKinney and David Dockery in their individual capacities for fraud and "civil conspiracy to unlawfully procure thousands of dollars in building permit fees for residential remodels while knowing that there is absolutely no legal basis to charge the fees," including "punitive and exemplary damages" based on McKinney and Dockery's" gross misconduct," "fraudulent mispresentations of fact and law to the LINDIGS which, in fact, are not true," and "gross negligence, malice and, at the very least, bad faith in unlawfully demanding and procuring these fees";

• •Compensation for the City's unlawful taking of their property; and

• •Attorney's fees, court costs, and pre- and post-judgment interest.

In support of their claims for affirmative relief, the Lindigs alleged that Dockery had testified that the City does not have a building permit fee schedule for residential repair or remodel projects and yet he and other City officials knowingly charged the Lindigs and other City residents fees for such projects.

Pursuant to an agreement between the parties, the district court enjoined further construction work while the Lindigs pursued their counterclaims against the City. In response to the Lindigs' counter-petition, the City filed special exceptions asserting that the Lindigs lacked standing to seek judicial review of the validity of the building code, arguing that only the Attorney General could pursue such a challenge through a quo warranto proceeding, and that the Lindigs had failed to exhaust their administrative remedies by appealing the Building Official's decision to the City's Board of Adjustment.¹ In addition, the City filed a plea to the jurisdiction, further arguing that the Lindigs' failure to exhaust their administrative remedies deprived the court of subject-matter jurisdiction over their counterclaims. The Lindigs did not file a response to the City's plea.

Lindigs' County Court Suit

After the City filed its plea to the jurisdiction in the district court, the Lindigs filed a verified petition for writ of certiorari in the county court of Blanco County appealing the Board of Adjustment's decision. See Tex. Loc. Gov't Code Ann. § 211.011(a)(1) (West 2008) (providing that any person aggrieved by decision of board of adjustment may file verified petition in district or county court stating that decision is illegal); see also id. § 211.011(c) (providing that court may grant writ of certiorari directed to board to review its decision). The Lindigs' petition for writ of certiorari stated that (1) the Board's stop-work order was invalid on its face because it did not put the Lindigs on notice of the alleged proscribed conduct; (2) the Board's determination that the Lindigs owed $ 1,000 was based on its erroneous interpretation of the City's building permit fee schedule; (3) the ordinance establishing the fee schedule was overly broad, vague, ambiguous, and gave unbridled administrative discretion to City officials and employees; and (4) "[i]n the alternative," "the City [wa]s barred as a matter of law from enforcing the Ordinance provisions by the principles of estoppel and waiver."

Combined with their petition for writ of certiorari, the Lindigs also filed in the county court their "Original Petition, Petition for Declaratory Judgment, & Application for Restraining Order" against the Board of Adjustment and Board Members.² The Lindigs' petition asserted the same claims against the Board and Board Members that they had raised in their counter-petition against the City in the district court. As a result, the parties had pending litigation in both district and county court regarding the same dispute.

The Board of Adjustment and the Board Members, all of whom were sued in their official capacity, filed a motion to dismiss the Lindigs' county court suit. The motion to dismiss asserted that: (1) the Lindigs' claim for declaratory relief regarding the legality of the city ordinances, takings claim, and request for attorney's fees were not yet ripe because the appeal of the Board of Adjustment's decision was still pending; (2) the Lindigs' suit against the members of the Board of Adjustment in their official capacity involved the same claims that the Lindigs had raised against the Board of Adjustment itself, and so the individually named defendant members of the Board should be dismissed; (3) the Lindigs failed to plead that they had suffered a particularized injury to give them standing to challenge the building permit fees or seek a general "reimbursement" of all fees paid by Johnson City residents; (4) the Lindigs' failure to pay under protest the fee assessed against them deprived them of standing to attack the validity of the ordinance; and (5) the Lindigs' pleadings were insufficient to support an estoppel or waiver claim against the City.³ With respect to the Lindigs' petition for writ of certiorari, the Board asserted that, pursuant to section 211.011 of the local government code, the only issue properly before the court was the legality of the Board's order, and therefore the court should not consider any of the Lindigs' other causes of action until there was a final judgment determining the order's legality.

The county court subsequently granted the Lindigs' petition for writ of certiorari, directing the Board to review and return its decision within ten days of the date of the order. See id. § 211.011 ("On the presentation of the petition, the court may grant a writ of certiorari directed to the board to review the board's decision."). The record shows that the...