Polecat Hill, LLC v. City of Longview

• Decision Date: 02 December 2021
• Docket Number: 06-20-00062-CV
• Citation: 648 S.W.3d 315
• Parties: POLECAT HILL, LLC, et al., Appellants v. CITY OF LONGVIEW, Texas, et al., Appellees
• Court: Texas Court of Appeals

648 S.W.3d 315

POLECAT HILL, LLC, et al., Appellants

v.CITY OF LONGVIEW, Texas, et al., Appellees

No. 06-20-00062-CV

Court of Appeals of Texas, Texarkana.

Date Submitted: March 24, 2021

Date Decided: December 2, 2021

Sten M. Langsjoen, Langsjoen Law Office, Tyler, Donna Broom, Broom Law Firm, Tyler, for Appellants.

Darren K. Coleman, Amy Miller, Bradley R. Echols, Boon, Calk, Echols, Coleman & Goolsby, PLLC, Longview, for Appellees.

Before Morriss, C.J., Burgess and Carter,^* JJ.

OPINION

Opinion by Justice Burgess

The City of Longview (the City) sent notice to Polecat Hill, LLC, d/b/a Sunbelt Residential Property, LLC (Polecat), that the conditions on 5.055 acres of its property located at 1203 East State Highway 31 in Longview, Texas (the Property), failed to satisfy health and safety standards mandated by several city ordinances. After receiving that notice, Polecat Hill sued the City. In response, the City filed a counterpetition against Polecat, Sunbelt Mobile Homes LLC, Richard Tabor, Anna Jeppsen, and the Property in rem seeking an injunction under Chapter 54 of the Texas Local Government Code to prohibit violations of city ordinances. After the City obtained favorable rulings on both its no-evidence and traditional motions for summary judgment, the trial court entered final judgment in favor of the City and issued permanent injunctions under Chapter 54.

Polecat, Tabor, and Jeppsen (collectively Appellants) appeal the trial court's summary judgment rulings.¹ Appellants argue that the trial court erred in granting the City's traditional motion for summary judgment because (1) the affidavits attached to the motion were from interested witnesses, (2) there was a general dispute over the characterization of the Property that affected the applicability of city ordinances at issue, and (3) the City was not entitled to injunctions under Chapter 54 because they did not prove that the violations of city ordinances were continuing violations. Appellants also argue that the trial court erred in granting the City's no-evidence motion for summary judgment.

We find that Appellants failed to preserve challenges to the affidavits attached to the City's traditional motion for summary judgment and that they waived any argument as to the characterization of the Property or applicability of city ordinances. We also conclude that Chapter 54 of the Texas Local Government Code did not require the City to prove that Appellants’ violations were continuing before obtaining a permanent injunction. As for the no-evidence motion, we find that summary judgment was proper because Polecat omitted any response on several causes of action, failed to attach competent evidence in response to the City's motion, and failed to raise a genuine issue of material fact on remaining causes of action. As a result, we affirm the trial court's judgment.

I. Factual and Procedural Background

The evidence in this case shows that the Property was used to house mobile homes and travel trailers. The City received complaints from residents of the Property about raw sewage being dumped on the ground, among other things. The City investigated the complaints and concluded that Polecat was operating a mobile home park and travel trailer park within the City without a license and in violation of city ordinances aimed at ensuring the health and safety of its residents. The City sent Polecat a notice of violations of city ordinances, which prompted this dispute.

A. The Parties’ Pleadings

On January 11, 2017, Polecat sued the City. Its petition said that Polecat purchased the Property in 1995 and that the Property had "been operating since at least the 1960's as a property for the location of manufactured dwellings to be permanently affixed to the real estate and connected to utilities." Polecat's petition described the lengthy history of its dealings with the City in an attempt to resolve raw sewage issues, among other things. Polecat recited that the City filed suit for violations of city ordinances in 2004 and 2012 against it and two of its members, Tabor and Jeppsen. Those lawsuits, which Polecat characterized as frivolous, were eventually dismissed after the City extended the public sewer line to the edge of the Property.

Polecat argued that the City refused to allow it to proceed with its plans to prepare the Property to be on public sewer service. Polecat argued that, instead, the City was requiring it to apply for a mobile home park license and comply with city ordinances by dedicating property to install fire hydrants, dedicating a turnaround space for fire trucks, and absorbing the cost of water flowing through the fire hydrants. Polecat argued that the City's requirements violated Section 212.904 of the Texas Government Code and that requiring a fire truck turnaround space and space for fire hydrants constituted an illegal exaction of property and inverse condemnation without adequate compensation that "violate[d] ... substantive rights of due process." Polecat believed that the City was going to launch criminal actions against Tabor and Jeppsen and claimed that such would constitute malicious prosecution. It also argued that the City's alleged interference was a nuisance that injured its property rights. Last, Polecat sought an injunction to prohibit the City from preventing Polecat's connection to the public sewer line.

In its counterpetition against Polecat, Sunbelt Mobile Homes LLC, Tabor, Jeppsen, and the Property in rem (the Polecat Defendants), the City complained that the Polecat Defendants were illegally operating an unlicensed mobile home park and unlicensed travel trailer park in violation of the City's code of ordinances. The City attached city ordinances to its counterpetition and alleged that the Polecat Defendants were committing the following violations:

a. Failing to provide sewage disposal connections in conformity with City of Longview ordinances and the laws of the State of Texas in violation of Section 100-2. b. Failing to obtain a license to operate and maintain a mobile home park and a license to operate and maintain a travel trailer party [sic] within the city limits of the City of Longview in violation of Section 100-61.

c. Failing to maintain the minimum square footage and minimum width for all mobile home lots and travel trailer lots in violation of Section 100-81.

d. Failing to separate the mobile homes and travel trailer from each other and other buildings by at least twenty (20) feet in violation of Sections 100-3 and 100-84.

e. Failing to obtain a permit to construct, alter, extend or repair an on-site sewage facility in violation of Section 106-84.

f. Failing to provide a recreational area that would be easily assessable [sic] to all park residents in violation of Section 100-85.

g. Failing to maintain the required setbacks from mobile home park boundary lines in violation of Section 100-86.

h. Failing to provide safe and convenient vehicular access from the roadways within the mobile home park to each mobile home lot in violation of Section 100-87.

i. Failing to maintain adequate roadway width accommodations for anticipated traffic and minimum roadway width requirements in violation of Section 100-87.

j. Failing to provide turn around areas in a diameter of at least 60 feet at the end of each dead end roadway within the mobile home park in violation of Section 100-87.

k. Failing to provide sufficient lighting units to provide illumination for safe movement of pedestrians and vehicles at night in violation of Section 100-87.

l. Failing to maintain quality of street paving and allowing the mobile home park's roadways to deteriorate in violation in [sic] 100-87.

m. Failing to provide an adequate and safe sewage system for conveying and disposing of all sewage (including the pooling of wastewater) in violation of Section 100-111.

n. Failing to maintain sewer lines of sufficient depth and free of breakage in violation of Section 100-112.

o. Failing to prevent effluents from sewage facilities from pooling and from being discharged into waters of the state in violation of Section 100-114.

p. Unlawfully utilizing a wastewater line above ground causing discharge on adjoining property in violation of Section 100-114.

q. Failing to provide sanitary facilities for the travel trailer park in violation of Section 100-132 and International Property Maintenance Code Section 304.3, as adopted by the City of Longview (Ordinance 19-18).

r. Unlawfully burying a rubber electrical (non UF stamped) power cord in violation of Section 100-122 and the National Electric Code, Table 300.5, as adopted by the City of Longview (Ordinance 37-1).

s. Failing to provide community sanitary facilities for travel trailer park in violation of Section 100-132.

t. Failing to maintain certain mobile homes within the park from decay, corrosion and other destructive elements, and failing to protect the exterior portions to prevent penetration of moisture and weather in violation of Section 100-133. u. Failing to keep the mobile home park free of litter, rubbish and other flammable materials in violation of Section 100-141 and Section 100-161.

v. Failing to provide adequate airtight, watertight and rodent proof refuse containers within 150 [sic] from each mobile home lot in violation of Section 100-142.

w. Unlawfully creating a public nuisance by discharging wastewater on any public or private property that is not inside of any building; by causing or allowing to be discharged wastewater on any public or private property that is not inside of any building; and by permitting wastewater to remain on any property that is owned by, occupied by or under the control of the person and that is not inside any building, whether or not the person deposited the wastewater onto the property in violation of Section 106-70.

x. Failing to provide and maintain fire apparatus access roads and turnarounds as required by Sections 503.2, 503.2.1 through 503.2.8 and Appendix D of the 2012 International Fire Code, as

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