Opinion
NO. 01-15-01039-CV
06-16-2016
CITY OF BAYTOWN, SCOTT WILLIAMS, AND RON BOTTOMS, Appellants v. APTBP, LLC D/B/A BAY POINTE APARTMENTS, AND GATESCO, INC., Appellees
On Appeal from the 189th District Court Harris County, Texas
Trial Court Case No. 2015-30625
MEMORANDUM OPINION
The City of Baytown, its chief building official, Scott Williams, and former acting city manager, Ron Bottoms, filed this interlocutory appeal contending that the trial court erred by denying their plea to the jurisdiction. We affirm.
Background
APTBP, LLC, doing business as Bay Pointe Apartments, sued Baytown, Williams, and Bottoms, alleging that the city wrongfully denied electric service to an apartment complex that APTBP was rehabilitating along with its property manager, GATESCO, Inc. GATESCO filed a plea in intervention. APTBP and GATESCO sought declaratory and injunctive relief.
Baytown and its officials filed a plea to the jurisdiction. They contended that the city's Construction Board of Adjustments and Appeals had exclusive original jurisdiction over APTBP and GATESCO's complaint and that their failure to exhaust their administrative remedies deprived the trial court of jurisdiction.
The trial court held an evidentiary hearing on the plea to the jurisdiction. No record of this hearing was made, but according to the appellees, the court heard testimony and reviewed documentary evidence presented at the hearing. Based on the evidence presented at the hearing, the trial court made specific fact findings and denied the jurisdictional plea by written order.
Baytown, Williams, and Bottoms now bring this interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8).
Analysis
Baytown's Code of Ordinances authorizes its chief building official to conduct inspections of multifamily dwelling complexes and imposes consequences for failing these inspections. Baytown, Tex., Code of Ordinances ch. 18, art. IX, § 18-710 (1998). The Code further provides that building owners or their agents may appeal from the chief building official's decisions to the city's Construction Board of Adjustments and Appeals if they claim he misinterpreted the building code. Id. ch. 18, art. II, § 18-58(a)(6). Baytown, Williams, and Bottoms contend that these ordinances confer exclusive original jurisdiction on the city's Construction Board of Adjustments and Appeals to hear appeals from the decisions of the chief building officer and that APTBP and GATESCO's failure to appeal to the board before filing suit deprived the trial court of jurisdiction. APTBP and GATESCO respond that the trial court held an evidentiary hearing on the plea to the jurisdiction and that Baytown, Williams, and Bottoms failed to secure a record of the hearing and thereby waived appellate review of the trial court's order denying the plea.
A reporter's record is not always necessary to preserve error for appellate review. See TEX. R. APP. P. 34.1, 37.3(c). In Michiana Easy Livin'Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005), the Supreme Court of Texas distinguished between evidentiary and nonevidentiary hearings and held that "a reporter's record is required only if evidence is introduced in open court; for nonevidentiary hearings, it is superfluous." Michiana, 168 S.W.3d at 781-82. If all of the evidence is filed with the clerk and the hearing consisted only of argument by counsel in open court, an appeal should be decided on the clerk's record alone. Id. at 782. We presume that a pretrial hearing was nonevidentiary "absent a specific indication or assertion to the contrary." Id. at 783. The proceeding's nature, the trial court's written order, and the parties' briefs may supply such an indication. Id. A party's assertion that a hearing was evidentiary, however, must include "a specific indication that exhibits or testimony was presented in open court beyond that filed with the clerk." Id.; see also Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 150-51 (Tex. 2015) (per curiam) (applying Michiana's evidentiary versus nonevidentiary hearing framework).
The trial court's order states that it "held an evidentiary hearing" and rendered its decision based on the "evidence presented at the hearing." It made findings of fact that turn on the evidence it heard. Specifically, the trial court found that:
(1) "No 'decision' was made by the City, as that term is used in the City of Baytown Code of Ordinances 18-58(a)."While there is evidence in the clerk's record that is relevant to these findings, APTBP and GATESCO state in their brief that the clerk's record does not contain all of the evidence that the trial court heard. They represent that there was additional proof "in the form of counsel testimony plus documentary evidence of emails." Baytown, Williams, and Bottoms filed no reply brief or other response to deny this contention. As such, they have not preserved any error for our review. See Michiana, 168 S.W.3d at 781-83 (specific indication of evidence beyond that filed with the clerk is sufficient); see also In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 316-17 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (presuming that proof presented to trial court during evidentiary hearing but absent from appellate record supported denial of motion).
(2) "No 'decision' was communicated" to APTBP and GATESCO.
(3) "No 'decision' relevant to [APTBP's] claims in its Original Petition was communicated" to APTBP and GATESCO.
(4) "Any 'decision' communicated" to APTBP and GATESCO "did not fall within the City of Baytown Code of Ordinances 18-58(a) which allows an appeal to the Construction Board of Adjustments and Appeals."
Conclusion
We affirm the trial court's order denying the plea to the jurisdiction filed by Baytown, Williams, and Bottoms.
Michael Massengale
Justice Panel consists of Justices Higley, Bland, and Massengale.