                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-14-00259-CV


1707 NEW YORK AVE., LLC                                                 APPELLANT

                                           V.

CITY OF ARLINGTON                                                        APPELLEE


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          FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 352-271175-14

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                         MEMORANDUM OPINION1

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                                   I.   Introduction

      Appellant 1707 New York Ave., LLC appeals from the trial court’s order

granting Appellee the City of Arlington’s plea to the jurisdiction. Appellant raises

two issues. In its first issue, Appellant claims that its claims are brought “directly

under the Texas Constitution” so that the City is not immune from Appellant’s

      1
       See Tex. R. App. P. 47.4.
claims. In its second issue, Appellant asserts that its claims are not subject to

the exhaustion requirement recognized by the Texas Supreme Court in City of

Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012).              Because we hold that

Appellant’s constitutional claims are subject to the exhaustion requirement and

because this holding is also dispositive of Appellant’s first issue, we will affirm the

trial court’s judgment.

                      II. Factual and Procedural Background

      After notice and a dangerous-and-substandard-structure hearing, the City’s

municipal court signed an order declaring the La Joya Arlington Apartments (the

apartments) to be “dangerous, substandard structures” and, thus, a public

nuisance. The municipal court ordered the owner to repair, remove, or demolish

the apartments by a certain date and to abate asbestos in accordance with

applicable law prior to undertaking repairs or demolition. Six months later, the

municipal court held a progress hearing and determined that the apartments

were not in compliance with the requirements of its prior order. Consequently,

the municipal court signed an August 13, 2013 order authorizing the City to

demolish the apartments at its discretion. The owner did not appeal the order,

and it became final. The City began the demolition process, mailed a notice of

demolition to the owner and interested parties, and filed the notice of demolition

in the Tarrant County deed records.

      Subsequently, with full notice of the filed notice of demolition, Appellant’s

parent company purchased from Fannie Mae a promissory note secured by the

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apartments.    Appellant’s parent company then foreclosed on the note and

purchased the apartments at foreclosure. Later, after engaging in negotiations

with the City concerning possibly rehabilitating the apartments, Appellant’s parent

company transferred the property to Appellant.2          Appellant filed this suit,

asserting constitutional claims under Texas Constitution article I, sections 17 and

19 and alleging a taking of its property and due-process violations.

            III. The Law Concerning Constitutional Taking Claims
                        and Nuisance Determinations

      The Texas Constitution provides that no “person’s property shall be taken,

damaged, or destroyed for or applied to public use without adequate

compensation being made . . . .”       Tex. Const. art. I, § 17.    Those seeking

recovery for a taking under this provision of the constitution must prove the

government “intentionally took or damaged their property for public use, or was

substantially certain that would be the result.” Harris Cty. Flood Control Dist. v.

Kerr, No. 13–0303, 2015 WL 3641517, at *2 (Tex. June 12, 2015) (quoting City

of Keller v. Wilson, 168 S.W.3d 802, 808 (Tex. 2005)); City of Dallas v. Jennings,

142 S.W.3d 310, 314 (Tex. 2004). Governmental immunity does not shield the

government from liability for compensation under the takings clause.3 Kerr, 2015


      2
        Appellant’s brief contains a thorough recitation of additional procedural
facts, but we omit them because they are not relevant to the trial court’s ruling on
the City’s plea to the jurisdiction.
      3
       The supreme court has explained that governmental immunity is distinct
from sovereign immunity; governmental immunity refers to the protection
afforded to political subdivisions such as counties, cities, school districts, and
                                         3
WL 3641517, at *2 (citing Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39

S.W.3d 591, 598 (Tex. 2001)).         When a plaintiff fails to allege a valid

inverse-condemnation claim, however, governmental immunity continues to

apply, and a trial court is without jurisdiction. Bell v. City of Dallas, 146 S.W.3d

819, 825 (Tex. App.—Dallas 2004, no pet.); Dahl ex rel. Dahl v. State, 92 S.W.3d

856, 862 (Tex. App.—Houston [14th Dist.] 2002, no pet.); see also Little-Tex, 39

S.W.3d at 599 (affirming grant of plea to the jurisdiction where plaintiff did not

allege proper takings claim).

      The Texas Supreme Court has “long held that the government commits no

taking when it abates what is, in fact, a public nuisance.”       City of Dallas v.

Stewart, 361 S.W.3d 562, 569 (Tex. 2012); see City of Texarkana v. Reagan,

247 S.W. 816, 817 (Tex. 1923). A party asserting a taking based on an allegedly

improper administrative nuisance determination must appeal that determination

and assert any takings claim in that proceeding. City of Beaumont v. Como, 381

S.W.3d 538, 540 (Tex. 2012); Patel v. City of Everman, 361 S.W.3d 600, 601

(Tex. 2012); Stewart, 361 S.W.3d at 579.        A party must also avail itself of

statutory remedies that may moot its takings claim, rather than directly instituting

a separate proceeding asserting such a claim.        Como, 381 S.W.3d at 540;

Stewart, 361 S.W.3d at 579; City of Dallas v. VSC, LLC, 347 S.W.3d 231, 234–

37 (Tex. 2011).

others. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex.
2003). Governmental immunity is at issue here.

                                         4
                              IV. Standard of Review

      To defeat a plea to the jurisdiction based on governmental immunity

asserted in a takings claim, a plaintiff must raise a fact issue as to each element

of her claim. Kerr, 2015 WL 3641517, at *2 (citing Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)); Archibeque v. N. Tex. State

Hosp.–Wichita Falls Campus, 115 S.W.3d 154, 157 (Tex. App.—Fort Worth

2003, no pet.). That is, the plaintiff must raise a fact issue as to intent, causation,

and public use. Kerr, 2015 WL 3641517, at *2 (citing Little-Tex Insulation Co., 39

S.W.3d at 598). Whether the specific facts alleged demonstrate a trial court’s

subject-matter jurisdiction is a legal question that is reviewed under a de novo

standard of review. Miranda, 133 S.W.3d at 226. This determination is made

accepting the factual allegations as true and construing them in the plaintiff’s

favor. Id. at 228; Archibeque, 115 S.W.3d at 157.

                     V. Application of the Law to the Facts

      Here, the prior owner of the apartments did not appeal the municipal

court’s order authorizing demolition;4 indeed, Appellant’s parent company

purchased the apartments with full notice that the City intended to demolish the

apartments and that a notice of demolition had been filed in the Tarrant County

deed records. Appellant does not dispute these facts. Instead, Appellant argued


      4
        Appellant agrees that no appeal was taken––“[u]nder the statute, the
owner had thirty days to appeal that order by filing suit. However, no suit was
filed.”

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during oral argument that it was not required to satisfy the exhaustion

requirement articulated by the Texas Supreme Court in Como, 381 S.W.3d at

540; Patel, 361 S.W.3d at 601; Stewart, 361 S.W.3d at 579; and VSC, 347

S.W.3d at 234–37, in order to assert its taking claims because, according to

Appellant, the City obtained the order authorizing demolition under a “hybrid”

procedure using the City’s ordinance and Texas Local Government Code

chapters 54 and 214. See Tex. Loc. Gov’t Code Ann. §§ 54.032–.041 (West

2008 & Supp. 2014); see also id. §§ 214.001–.012 (West 2008 & Supp. 2014);

Arlington, Tex., Code of Ordinances ch. Nuisance, art. IV, §§ 4.03–.04 (2015).

But this argument by Appellant constitutes the assertion of a taking based on an

allegedly improper administrative nuisance determination and consequently falls

squarely within the parameters of the supreme court’s holdings in Como, 381

S.W.3d at 540; Patel, 361 S.W.3d at 601; Stewart, 361 S.W.3d at 579; and VSC,

347 S.W.3d at 234–37. Appellant was required to make this argument and to

assert its takings claim and other constitutional claims in an appeal of the

nuisance determination.    See Como, 381 S.W.3d at 538; Patel, 361 S.W.3d at

601; Stewart, 361 S.W.3d at 579; VSC, 347 S.W.3d at 234–37. Because neither

Appellant nor any prior owner of the apartments appealed the nuisance

determination, Appellant cannot attack collaterally what was not challenged

directly, and its taking claim and other “direct” constitutional claims are barred.

See Como, 381 S.W.3d at 539; Stewart, 361 S.W.3d at 580.



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      Appellant nonetheless argues that although its pleaded constitutional

claims against the City are all premised on the City’s “acts” in proceeding with the

demolition of the apartments pursuant to the municipal court’s August 13, 2013

order5––it is asserting on appeal four different factual grounds for its

constitutional claims “based on actions that were taken [by the City] after the

Order Authorizing Demolition, and which were not covered by that order.” But

this distinction is illusory. The City’s actions after entry of the order authorizing

demolition were taken pursuant to that order in preparation for demolition—these

acts were “covered by” the order authorizing demolition. Appellant has pointed to

no authority, and we have located none, for the proposition that the City was

required to obtain multiple, sequential, and separate orders to engage in acts

preparing for an authorized demolition.

      Thus, because the City’s acts forming the basis of Appellant’s

constitutional claims were performed pursuant to the order authorizing demolition

and because neither Appellant nor any prior owner of the apartments appealed

the order authorizing demolition, Appellant’s pleading does not present a valid

takings claim. See Dahl, 92 S.W.3d at 862. Appellant cannot create jurisdiction

by stating a takings claim unless that claim is facially valid. Bell, 146 S.W.3d at

825; Dahl, 92 S.W.3d at 862. Appellant’s claims are not facially valid because

      5
       For example, Appellant pleads that “the City is intent on destroying
[Appellant’s] property,” “the City’s actions amount to a taking and damaging of
[Appellant’s] property,” and “the City plans to move forward with the complete
destruction of [Appellant’s] property.”

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the nuisance determination is unchallenged and “the government commits no

taking when it abates what is, in fact, a public nuisance.” Stewart, 361 S.W.3d at

569; see Reagan, 247 S.W. at 817.

      We overrule both of Appellant’s issues.

                                 VI. Conclusion

      Having overruled both of Appellant’s issues, we affirm the trial court’s

judgment.


                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

MEIER, J., filed a concurring opinion.

DELIVERED: October 22, 2015




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