Full Opinion (html_with_citations)

Opinion filed December 30, 2022




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-21-00171-CV
                                  __________

         JARNAIL SIHOTA AND GTHCC, INC., Appellants
                                         V.
                       CITY OF MIDLAND, Appellee


                    On Appeal from the 385th District Court
                           Midland County, Texas
                       Trial Court Cause No. CV57400


                     MEMORANDUM OPINION
      Appellants, Jarnail Sihota and GTHCC, Inc., appeal the trial court’s grant of
the plea to the jurisdiction filed by Appellee, the City of Midland (the City).
Appellants filed suit in district court seeking (1) a temporary injunction prohibiting
the City from demolishing Appellants’ building and (2) a declaratory judgment that
the City’s abatement order was improperly applied to Appellants’ property in this
instance. In response, the City filed a plea to the jurisdiction on the grounds that
(1) Appellants failed to timely appeal the abatement order as required by
Section 214.0012 of the Texas Local Government Code and (2) Appellants’ claims
are barred by governmental immunity. On appeal, Appellants assert that the trial
court erred when it granted the plea because the trial court should have invoked its
equitable jurisdiction and estopped the City from demolishing Appellants’ building
pursuant to the abatement order. We affirm.
                              I.   Factual Background
      Appellants own real property within the city limits of Midland, Texas. On
September 22, 2020, the Midland City Council held a public hearing regarding the
City’s application to declare a structure on Appellants’ property a nuisance.
Appellants’ agent appeared on their behalf at the hearing. Following the public
hearing, the City Council issued an order that (1) found the structure on Appellants’
property to be a substandard building and (2) required abatement action pursuant to
Section 4-8-7 of the City’s Municipal Code. Copies of the order were sent to
Appellants.
      The September 2020 order directed Appellants to either make certain repairs
to the building or demolish it within thirty days. In the event that Appellants did not
comply with the order’s directives, the order authorized the City to demolish the
building. On October 13, 2020, the City issued a building permit that allowed for
work on Appellants’ building to commence within 180 days of its issuance.
      Upon the issuance of the building permit, Appellants began making the repairs
to the building. However, after several months, Appellants had neither completed
all of the required repairs nor demolished the structure. On February 16, 2021,
the City notified Appellants of its intent to demolish the structure pursuant to the
abatement order. On February 22, 2021, Appellants filed their original petition
seeking a declaratory judgment and request for emergency relief pursuant to the
Texas Uniform Declaratory Judgments Act (UDJA) and Article 1, Section 17 of the
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Texas Constitution. In their petition, Appellants claimed that they had invested
approximately $1.8 million on this project.
      The City filed its plea to the jurisdiction asserting that (1) Appellants failed to
comply with the jurisdictional requirements of Chapter 214 of the Texas Local
Government Code and (2) the City is immune from suit under the doctrine of
governmental immunity, which deprived the trial court of subject-matter jurisdiction
over Appellants’ claims. In response, Appellants asserted that the trial court should
exercise equitable jurisdiction to estop the City from demolishing the building
because Appellants, in reliance on the City’s representations and conduct, believed
that they had more than thirty days to complete the repairs because (1) the City issued
a building permit authorizing construction to begin within 180 days of its issuance
and (2) the City had allowed Appellants to continue construction on the building for
nine months after the abatement order was issued. Appellants also asserted that the
City waived its governmental immunity under the UDJA. After a hearing, the trial
court granted the City’s plea and dismissed Appellants’ claims with prejudice. This
appeal followed.
                               II. Standard of Review
      Before a court may decide a case, it is essential that the court possess subject-
matter jurisdiction. Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547
, 553–54 (Tex.
2000). A plea to the jurisdiction is a dilatory plea and a proper method by which to
challenge a trial court’s subject-matter jurisdiction.
Id. at 554
. Whether a trial court
has subject-matter jurisdiction over a case is a question of law that we review
de novo. Harris Cnty. v. Annab,
547 S.W.3d 609, 612
 (Tex. 2018) (citing Tex. Dep’t
of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226
 (Tex. 2004)); Ector Cnty. v.
Breedlove,
168 S.W.3d 864, 865
 (Tex. App.—Eastland 2004, no pet.).
      The purpose of a plea to the jurisdiction is to defeat a pleaded cause of action
without reaching the merits. Blue,
34 S.W.3d at 554
. A plea to the jurisdiction may
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challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights
Indep. Sch. Dist. v. Clark,
544 S.W.3d 755, 770
 (Tex. 2018); City of Merkel v.
Copeland,
561 S.W.3d 720, 723
 (Tex. App.—Eastland 2018, pet. denied). When
the plea challenges the existence of jurisdictional facts, as in the case before us, we
must move beyond the pleadings and consider evidence when necessary to resolve
the jurisdictional issues, even if the evidence implicates both subject-matter
jurisdiction and the merits of a claim. Clark, 544 S.W.3d at 770–71 (citing Blue,
34 S.W.3d at 555
). In such cases, the standard of review mirrors that of a traditional
summary judgment.
Id.
 at 771 (citing Miranda, 133 S.W.3d at 225–26).
      Thus, if the plaintiff’s factual allegations are challenged with supporting
evidence necessary to the consideration of the plea to the jurisdiction, the plaintiff
must raise at least a genuine issue of material fact to overcome the challenge to the
trial court’s subject-matter jurisdiction and avoid dismissal.
Id.
 (citing Miranda,
133 S.W.3d at 221
). When we determine whether a material fact issue exists, “we must
take as true all evidence favorable to the plaintiff, indulging every reasonable
inference and resolving any doubts in the plaintiff’s favor.”
Id.
 We cannot,
however, disregard evidence that is necessary to show context; nor can we disregard
evidence and inferences unfavorable to the plaintiff if reasonable jurors could not.
Id.
 (citing City of Keller v. Wilson,
168 S.W.3d 802
, 811–12, 822–23, 827 (Tex.
2005)).
                                    III. Analysis
      Texas law authorizes municipalities to enact ordinances requiring the repair
or demolition of buildings that are dilapidated, substandard, or unfit for human
habitation when they pose a hazard to public health, safety, and welfare. TEX. LOC.
GOV’T CODE ANN. § 214.001(a)(1) (West Supp. 2022). A property owner aggrieved
by a municipality’s order issued under Section 214.001 may appeal the order by
filing a verified petition in district court within thirty days of the property owner’s
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receipt of the order. Id. § 214.0012(a). The filing of a petition that conforms to
Section 214.0012’s requirements is a prerequisite to invoking the trial court’s
subject-matter jurisdiction. See id. (a municipality’s order becomes final upon the
expiration of the thirty-calendar-day period); City of Dallas v. Stewart,
361 S.W.3d 562, 579
 (Tex. 2012) (noting that a party seeking to challenge a municipality’s
nuisance determination on constitutional grounds “must first exhaust its
administrative remedies and comply with jurisdictional prerequisites for suit”); Fox
v. Wardy,
318 S.W.3d 449, 453
 (Tex. App.—El Paso 2010, pet. denied) (the filing
of a petition under Section 214.0012 is a prerequisite to invoking the trial court’s
subject-matter jurisdiction over the proceeding).
      Here, Appellants failed to timely appeal the City’s order within the thirty-day
period required by Section 214.0012. Appellants also failed to show that they
remedied all of the deficiencies listed in the City’s order. As a result, the City’s
order requiring abatement became final upon the expiration of the statutory thirty-
day period. See LOC. GOV’T § 214.0012(a). Nevertheless, Appellants assert that the
trial court has equitable jurisdiction to estop the City from demolishing Appellants’
building to prevent (1) manifest injustice and (2) an unconstitutional taking.
      First, Appellants assert that the existence of manifest injustice alone is
sufficient to confer equitable jurisdiction on the trial court and require the application
of estoppel. To support this assertion, Appellants rely on Texas Supreme Court
decisions discussing the “justice requires” estoppel doctrine. See City of White
Settlement v. Super Wash, Inc.,
198 S.W.3d 770, 775
 (Tex. 2006) (“a municipality
may be estopped in those cases where justice requires its application, and there is no
interference with the exercise of its governmental functions”); see also Tex. Dep’t
of Transp. v. A.P.I. Pipe & Supply, LLC,
397 S.W.3d 162, 164
 (Tex. 2013); City of
San Antonio v. Schautteet,
706 S.W.2d 103, 105
 (Tex. 1986); Roberts v. Haltom
City,
543 S.W.2d 75, 80
 (Tex. 1976); City of Austin v. Liberty Mut. Ins.,
431 S.W.3d 5 817, 824
 (Tex. App.—Austin 2014, no pet.); Clear Lake City Water Auth. v.
Winograd,
695 S.W.2d 632, 635
 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d
n.r.e.). Although the cases cited by Appellants clarify the exceptional circumstances
under which a municipality could be estopped from enforcing municipal ordinances,
they do not stand for the proposition that a municipality’s alleged misleading actions
could invoke the trial court’s subject-matter jurisdiction.
      Contrary to Appellants’ assertion, the Texas Supreme Court held in Wilmer-
Hutchins Independent School District v. Sullivan that “[a] party cannot by his own
conduct confer jurisdiction on a court when none exists otherwise.”
51 S.W.3d 293
,
294–295 (Tex. 2001). As such, “a [trial] court cannot acquire subject-matter
jurisdiction by estoppel.”
Id. at 294
; see also Janik v. Lamar Consol. Indep. Sch.
Dist.,
961 S.W.2d 322, 324
 (Tex. App.—Houston [1st Dist.] 1997, pet. denied);
Washington v. Tyler Indep. Sch. Dist.,
932 S.W.2d 686, 690
 (Tex. App.—Tyler
1996, no writ) (while fact issues regarding estoppel may have existed, “estoppel
cannot confer jurisdiction on the trial court”); Daniel v. Dallas Indep. Sch. Dist.,
351 S.W.2d 356, 359
 (Tex. App.—El Paso 1961, writ ref'd n.r.e.) (“jurisdiction of a
[trial] court is so important and essential that it has long been held that it cannot be
conferred by estoppel”). Here, even if the City’s actions could be construed as
misleading, Appellants’ underlying claims must, as a preliminary matter, invoke
subject-matter jurisdiction before a trial court could reach and decide the merits of
their estoppel argument.
      Second, Appellants assert that if the City demolished Appellants’ building it
would constitute an unconstitutional taking because of the City’s alleged misleading
actions. Thus, Appellants’ claim that the trial court has equitable jurisdiction to
estop the City and prevent an unconstitutional taking despite Appellants’ failure to
timely appeal the City’s nuisance determination. The Texas Supreme Court in City
of Dallas v. Stewart,
361 S.W.3d 562
 (Tex. 2012), and Patel v. City of Everman, 361
6 S.W.3d 600
 (Tex. 2012), addressed whether a property owner who failed to appeal
a nuisance determination pursuant to Section 214.0012 could nonetheless bring a
collateral challenge alleging an unconstitutional taking. The court held that “a
litigant must avail itself of statutory remedies that may moot its takings claim, rather
than directly institute a separate proceeding asserting such a claim.” Stewart,
361 S.W.3d at 579
; accord Patel,
361 S.W.3d at 601
. The court also noted that
“[a]lthough agencies have no power to preempt a court’s constitutional construction,
a party asserting a taking must first exhaust its administrative remedies and comply
with jurisdictional prerequisites for suit.” Stewart,
361 S.W.3d at 579
 (footnote
omitted); Patel,
361 S.W.3d at 601
.
       In this case, Appellants failed to timely appeal the City’s administrative
nuisance determination. Instead, Appellants asserted a collateral challenge to the
nuisance determination by seeking to enjoin the City from, as Appellants allege,
unconstitutionally taking their property through demolition. Appellants cannot
attack collaterally what they declined to challenge directly. See Stewart,
361 S.W.3d at 580
; Patel,
361 S.W.3d at 602
. Thus, Appellants’ failure to timely appeal the
abatement order is fatal to the claims that they have raised and precludes the trial
court from acquiring subject-matter jurisdiction. See Stewart,
361 S.W.3d at 580
(internal citation omitted) (“a failure to comply with the appeal deadlines . . .
precludes a party from raising the issue in a separate proceeding”); see also Sullivan,
51 S.W.3d at 295
 (“Even if the District misled Sullivan as she claims, her failure to
exhaust her administrative remedies is fatal to her action.”).
      Because the trial court lacked subject-matter jurisdiction over Appellants’
claims, it did not err when it granted the City’s plea to the jurisdiction and dismissed
Appellants’ claims. Accordingly, we overrule Appellants’ sole issue on appeal.




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                           IV. This Court’s Ruling
      We affirm the order of the trial court.




                                                W. STACY TROTTER
                                                JUSTICE


December 30, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.




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