Opinion issued September 18, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                            NO. 01-13-00704-CV
                          ———————————
                  LEE ANN WHEELBARGER, Appellant
                                      V.
          CITY OF EL LAGO AND RICHARD SMITH, Appellees


                  On Appeal from the 190th District Court
                           Harris County, Texas
                    Trial Court Case No. 2010-58056-A


                                OPINION

      This appeal arises from a claim by appellant Lee Ann Wheelbarger that the

appellees, the City of El Lago and Richard Smith (sued in his official capacity

only), violated her constitutional right to due process in determining that a

condominium complex in which she owned a unit had been “substantially
damaged” by Hurricane Ike. She claimed that this determination, communicated in

a letter to her condominium association, was made without affording her a hearing

or an opportunity to appeal and that it led to the demolition of the complex by its

private governing council. Finding that it lacked subject-matter jurisdiction, the

trial court dismissed her claims.

        We conclude that any controversy about the initial determination of

substantial damage was rendered nonjusticiable because of subsequent events in

which the City’s Building Standards Commission declared the complex a nuisance

and ordered it repaired or demolished. Accordingly, we affirm the dismissal of the

suit.

                                    Background

        Lee Ann Wheelbarger owned a condominium in a complex called The

Landing, located in the City of El Lago on the north shore of Clear Lake. The

Landing was governed by a condominium association known as the “Landing

Council of Co-Owners.” In the fall of 2008, Hurricane Ike made landfall. All

parties agree that the storm’s winds and waves damaged the complex, though they

disagree about the extent of the harm.

        Richard Smith, as the City’s “Building Official,” was responsible for

reviewing construction permits for conformity with local zoning rules and building

codes. The City’s zoning regime allowed for “non-conforming uses,” which are



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defined by the zoning ordinance to include older structures (such as The Landing)

that do not meet current building requirements but were grandfathered because

they complied with the law when originally constructed. The El Lago zoning

ordinances specified that no permit would issue to repair a non-conforming

structure damaged to an extent greater than 51% of its market value unless the

structure were renovated to conform to current standards.

      After a lengthy investigation of damage caused by Hurricane Ike, Smith sent

a letter to The Landing’s condo association in July 2009, informing the owners of

his determination that the complex had been “substantially damaged,” meaning

that it had been damaged in excess of 51% of its market value. Smith stated that he

had yet to receive an application for a permit to conduct repairs, and any such

application would be reviewed on its merits, but that his substantial-damage

determination would “guide” his review.

      The Landing had been built in the 1970s, and bringing it up to code would

have required such substantial alterations to common areas that repairs would not

be economically feasible. The Landing Council did not seek a permit and did not

attempt repairs.

      A group of condominium owners were dissatisfied with the Council’s

decision. Calling themselves the “Concerned Owners of the Landing

Condominiums,” they sent a letter entitled “NOTICE OF APPEAL” to Smith, the



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mayor, and the city attorney. The letter requested an appeal of Smith’s

determination that the Landing had been “substantially damaged” and an

opportunity to submit evidence. This group of owners did not include

Wheelbarger. The City responded that because no permit application for repairs or

construction had been submitted, no official action had been taken by the Building

Official, and absent action on a permit application, no appeal was available.

      Time passed and no steps were taken to repair the structures at The Landing.

The City of El Lago Building Standards Commission held a hearing to determine

whether The Landing complex should be declared a “Substandard Structure”

subject to demolition as a public nuisance. The Commission heard evidence at a

public hearing on April 26, 2010, and it concluded that the buildings at The

Landing were substandard structures and a public nuisance. The Commission

ordered the buildings’ owner to apply for either a repair permit or a demolition

permit within 30 days.

      At the end of May 2010, the Landing Council decided to demolish the

complex, and it sent a letter to unit owners informing them that they had until June

20 to remove their personal possessions. In response, the “Concerned Owners”

regrouped as “Owners Supporting Options at the Landing Condominiums,” and

they sued both the Landing Council and the City of El Lago.




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       The Owners Supporting Options failed to prevent the demolition of The

Landing, which was bulldozed in April 2011 by the Landing Council. While the

Owners Supporting Options ultimately obtained a money judgment against the

Landing Council, the City successfully moved for summary judgment on all claims

against it.

       Wheelbarger was not among the Owners Supporting Options. On the

contrary, she served as a member of the board of directors of the Landing Council

at the time of the hurricane, continuing through the time the lawsuit was filed.

       Wheelbarger obtained a report from an engineering company on the cost and

feasibility of repairing the complex. This report found that the complex had

suffered only “relatively minor structural damages.” Alleging that Wheelbarger

had commissioned the report without authorization and that it incited litigation

against the Council, the directors sued Wheelbarger as a third-party defendant in

their ongoing litigation with the Owners Supporting Options. Wheelbarger filed

counterclaims against the Landing Council and third-party claims against the City

and Smith that mirrored the claims of the Owners Supporting Options.

       Wheelbarger’s petition against the City and Smith alleged that she was

deprived of property without due process of law. She claimed that The Landing

was destroyed because of Smith’s determination that it was substantially damaged,

that she was not given notice or an opportunity to be heard in regard to this finding,



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and that she was not afforded an opportunity to appeal it. For these alleged due-

process violations, she sought relief based on 42 U.S.C. § 1983 and the Texas

Declaratory Judgment Act.

      The City filed a traditional motion for summary judgment seeking dismissal

of all of Wheelbarger’s claims. The City argued that her claims were barred by res

judicata and collateral estoppel based on the prior summary judgment entered in its

favor against the Owners Supporting Options. It also claimed that Wheelbarger’s

claims failed as a matter of law because she did not have a property interest in a

review of the substantial-damage determination. It further claimed that her case

should be dismissed because she lacked standing, her claims were not ripe, and her

claims were moot.

      In addition, the City and Smith filed a plea to the jurisdiction arguing that

governmental immunity barred Wheelbarger’s claims. The trial court sustained the

City’s plea to the jurisdiction, and on the same day, it granted the motion for

summary judgment. The order granting summary judgment did not state the

grounds for the relief granted.

      Wheelbarger filed a motion to sever her claims against the City and Smith

from the rest of the litigation so that the trial court’s orders would be final and

appealable. In an “Agreed Order and Final Judgment,” the trial court granted the

motion to sever and dismissed her severed claims against the City and Smith for



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lack of subject-matter jurisdiction. Wheelbarger then filed her notice of appeal

from the final judgment entered against her.

                                      Analysis

      In her appellate brief, Wheelbarger argues that she has standing because the

“substantial damage determination significantly affected the prospects for repair of

her home” and “led to a notice of demolition and then actual demolition of her

home.”

      “As a general proposition, before a court may address the merits of any case,

the court must have jurisdiction over the party or the property subject to the suit,

jurisdiction over the subject matter, jurisdiction to enter the particular judgment,

and capacity to act as a court.” State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245

(Tex. 1994). “Subject matter jurisdiction requires that the party bringing the suit

have standing, that there be a live controversy between the parties, and that the

case be justiciable.” Id. If subject-matter jurisdiction is lacking, then a court must

dismiss the case. Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012).

      Standing is a legal question that appellate courts review de novo. Heckman,

369 S.W.3d at 149–50. “[B]ecause a court must not act without determining that it

has subject-matter jurisdiction to do so, it should hear evidence as necessary to

determine the issue before proceeding with the case.” Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). As such, a court is not limited to



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considering the accusations in the pleadings when determining a question of

subject-matter jurisdiction. See id.

      At the same time, the Supreme Court has cautioned that plaintiffs “should

not be required to put on their case simply to establish jurisdiction.” Id. If the

evidence before the court creates a fact issue regarding jurisdiction, then the fact

issue must await resolution by the fact-finder. Tex. Dep’t of Parks and Wildlife v.

Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004). “However, if the relevant

evidence is undisputed or fails to raise a fact question on the jurisdictional issue,”

then the court must rule on the jurisdictional issue as a matter of law. Id. at 228.

      Standing doctrine derives from the constitutional rule that Texas courts may

only decide actual cases or controversies. See Patterson v. Planned Parenthood of

Hous. & Se. Tex., Inc., 971 S.W.2d 439, 442–43 (Tex. 1998). There must be a real

controversy between the parties that will be actually determined by the judicial

declaration sought. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.

2005). The parties must be properly situated to be entitled to a judicial

determination. Id.

      Wheelbarger claims her condo was torn down because Smith, in a manner

that denied her due process of law, determined that The Landing was substantially

damaged. But even if Smith’s July 2009 letter constituted an actionable

determination regarding the property, Wheelbarger now lacks standing to



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challenge it, because it was superseded by the findings and order of the Building

Standards Commission concluding that the complex was a public nuisance and

commanding that its owners either seek a repair permit or a demolition permit. See

id.

      In her brief Wheelbarger contends that the Commission “wrote [Smith’s]

determination into its order.” Thus it is her position that any repair pursuant to that

order would have had to satisfy the standards for substantially-damaged structures.

However, the record does not indicate that the Commission deferred to Smith’s

determination or that it applied a presumption in favor of that outcome. On the

contrary, before it made its decision, the Commission entertained evidence and

testimony from stakeholders and public officials, including both Smith and

Wheelbarger. The record does not indicate, nor does Wheelbarger argue, that

Smith’s letter foreordained the Commission’s action, nor is there any suggestion

that the validity of the Commission’s order depended on the validity of Smith’s

initial determination.

      Were a court to rule that Smith made his determination without affording

Wheelbarger due process, the fact remains that The Landing would still have been

subject to the Commission’s repair-or-demolish order. See Heckman, 369 S.W.3d

at 155–56 (in order to establish standing, plaintiff must establish a “substantial

likelihood that the requested relief will remedy the alleged injury in fact”).



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Wheelbarger lacks standing to challenge Smith’s determination because a judicial

finding in her favor would not affect the validity of the Commission’s

unchallenged order. See id.

      As a subissue to her due process claim, Wheelbarger also argues that she had

a right to appeal Smith’s determination under the City’s code of ordinances, EL

LAGO, TEX., CODE     OF   ORDINANCES § 7-24, the Texas Local Government Code,

TEX. LOC. GOV’T CODE ANN. § 211.010 (West 2008), a FEMA “RSDE Field

Workbook,” and constitutional due process. She contends that the City and Smith

“refused” to permit any appeal of the determination to the Board of Adjustment or

otherwise. In support, she relies upon the City’s November 24, 2009 letter to the

Concerned Owners of the Landing Condominiums in which it explained that the

Concerned Owners request for an appeal was “not timely.”

      Wheelbarger was not a member of the Concerned Owners and not a party to

the “Notice of Appeal” they mailed to Smith, the mayor, and the city attorney on

October 16, 2009. Likewise, she was not a party to the City’s November 24, 2009

response letter in which it allegedly “refused” to permit an appeal. See Heckman,

369 S.W.3d at 156 (holding that issues of standing require “careful judicial

examination of a complaint’s allegations to ascertain whether the particular

plaintiff is entitled to an adjudication of the particular claims asserted”). Moreover,

the letter of the Concerned Owners was not addressed to the Board of Adjustment,



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and it is with the Board of Adjustment that Wheelbarger claims she had a right to

appeal under the Local Government Code and city ordinances. See id. Since

Wheelbarger never sought to appeal, she is not someone “personally aggrieved” by

the City’s alleged refusal to permit an appeal. See id.; DaimlerChrysler Corp. v.

Inman, 252 S.W.3d 299, 304 (Tex. 2008). As there exists no “real controversy”

between the parties in this regard, Wheelbarger lacks standing to claim that Smith

or the City wrongly denied her an appeal. See Austin Nursing Ctr., 171 S.W.3d at

849.

       Wheelbarger also argues, in the alternative, that if the trial court did lack

subject-matter jurisdiction over her claims, that it nonetheless should not have

entered a merits-based summary judgment in favor of the City. While Wheelbarger

is correct that a court without subject-matter jurisdiction should not rule on the

merits of a case, see Bland, 34 S.W.3d at 554, the order granting summary

judgment in this case did not specify its grounds. The City’s motion for summary

judgment presented both merits-based grounds and jurisdictional grounds,

including standing. Furthermore, the trial court later entered an “Agreed Order and

Final Judgment” dismissing Wheelbarger’s claims because “this Court does not

possess subject matter jurisdiction over these claims.” “When a trial court’s order

granting summary judgment does not specify the grounds relied upon, the

reviewing court must affirm summary judgment if any of the summary judgment



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grounds are meritorious.” FM Props. Operating Co. v. City of Austin, 22 S.W.3d

868, 872–73 (Tex. 2000). Because standing was a ground presented by the City’s

summary-judgment motion, the trial court did not err in granting summary

judgment in favor of the City.

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Chief Justice Radack, and Justices Jennings and Massengale.




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