Opinion
01-20-00654-CV
02-08-2022
JAIME JARAMILLO, Appellant v. THE CITY OF TEXAS CITY, Appellee
On Appeal from the 10th District Court Galveston County, Texas Trial Court Case No. 20-CV-1033
Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.
MEMORANDUM OPINION
VERONICA RIVAS-MOLLOY, JUSTICE
Appellant Jaime Jaramillo ("Jaramillo") appeals the trial court's order granting The City of Texas City's ("Texas City") motion to dismiss his suit for want of jurisdiction. In two issues, Jaramillo contends (1) the district court had jurisdiction to hear an appeal of the parties' Agreed Order of Abatement, and (2) the district court erred in granting Texas City's motion to dismiss. We affirm.
Background
Jaramillo owns real property located at 1111 and 1119 6th Street, Texas City, Galveston County, Texas 77590. Following a physical inspection of the buildings on Jaramillo's property, Texas City notified Jaramillo in writing that the structures were "substandard" as defined in several provisions of Texas City's Code of Ordinances and the International Property Maintenance Code. Texas City then filed a complaint in Texas City Municipal Court seeking an order requiring Jaramillo to abate the alleged substandard structures on his real property and, if Jaramillo failed to comply, authorizing Texas City to demolish the structures.
Texas City set the matter for an abatement hearing on July 15, 2020. That same day, Jaramillo and Texas City signed an Agreed Order of Abatement ("Abatement Order"). Among other things, the Abatement Order states that:
• The City sought the enforcement of its ordinances, including the City's ordinances, Title XV: Land Use, Chapter 150; Building Regulations; § 150.033, Minimum Standards Substandard Building;
• Jaramillo received proper notice of the proceeding;
• The City notified Jaramillo in writing that structures located on his property were substandard as defined by the City's ordinances;
• Jaramillo was the owner of the real property on which the buildings were situated;
• The substandard findings were based on the physical inspection performed by the City's Inspection/Code Enforcement Officer and notice of the findings were provided to Jaramillo;
• Jaramillo stipulates and agrees that the buildings and structures located on his property are substandard structures as defined by the City's ordinances, Title XV: Land Use, Chapter 150; Building Regulations; Construction § 150.033;
• Jaramillo further stipulates and agrees that the abatement of the real property is reasonable and in the best interest of the public health, safety and welfare. More specifically, there was a showing of substantial danger of injury or an adverse health impact to any person or to the property of any person;
• Jaramillo and the City agree to allow the City at any time after July 31, 2020 to abate the real property and demolish the structures, clean the lot and depose of any debris;
• As consideration to Jaramillo for entering into the order, the City will not seek reimbursement of the costs of abatement from Jaramillo, but reserves the right to place a lien on the real property as authorized by law;
• Jaramillo releases, discharges, and holds harmless the City from any liability, claims, and demands arising from the implementation of the agreed order or the abatement of the real property including but not limited to the release of any claims of any violations of substantive or procedural due process rights or takings claims under state or federal law; and
• Jaramillo is legally competent to execute this Agreed Order, has been fully informed of its terms, had the option to seek the advice of counsel, decided to enter into this Agreed Order without duress, in good faith and for sufficient consideration, the Agreed Order is fair, just and reasonable, and he acted of his own free will, without inducement, duress or undue influence of any kind.
• The agreed order disposes of all matters in controversy in this proceeding between the parties and constitutes a final decision appealable in accordance with Texas Government Code section 214.0012(a) and any relief not expressly granted is denied.
Jaramillo and the Texas City prosecutor discussed the terms of the Abatement Order on the record. The Municipal Court judge asked about Jaramillo's agreement to the order: "So I take it if you sign it, you agree to what . . . he stated. And he's saying that is what's in the four corners of that document, okay? And you are in agreement with that? You have to verbally respond." Jaramillo responded: "Yes."
Two weeks later, on July 30, 2020, Jaramillo filed suit against Texas City in Galveston County District Court alleging an unlawful taking of his property. He alleged that, prior to the abatement hearing, the Texas City prosecutor threatened that Jaramillo could either agree to an order authorizing Texas City to demolish the structures on his real property or Texas City would fine him up to $2,000 per day from January 21, 2020 (the date of the initial inspection) to July 15, 2020 (the date of the abatement hearing). According to Jaramillo, he had "no financial choice except to agree to the [Abatement] Order." He alleged the Texas City prosecutor's conduct was illegal and denied him procedural due process in violation of Article 1, Sections 17 and 19 of the Texas Constitution and the Fifth and Fourteenth Amendments of the United States Constitution.
Jaramillo requested that the trial court issue a declaratory judgment finding that Texas City's actions were null, void, and of no effect and a writ of certiorari to the Municipal Court under Texas Local Government Code section 214.0012(a). He also sought a temporary restraining order and a temporary injunction seeking to prevent Texas City from taking certain actions in connection with the structures on his real property. Jaramillo also requested monetary relief.
The trial court granted Jaramillo's request for a temporary restraining order and set a temporary injunction hearing for September 2, 2020. Following the hearing, the trial court denied Jaramillo's request for a temporary injunction. The next day, Jaramillo filed his first amended petition adding claims of fraud and civil conspiracy against Texas City. He alleged "the City's course of action is a series of concerted acts of fraud, collusion and misrepresentation by the named participants and others, designed to induce Plaintiff into the Agreed Order, the end consequence of which is the taking of his Property." He claimed Texas City had misrepresented the code violations and corresponding fines to him and had "coerced and induced" him to sign a document that "fraudulently represented his rights in the 'Property.'" Jaramillo sought monetary relief, a declaration from the trial court that Texas City's actions were null, void, and of no effect, and a writ of certiorari to the Municipal Court under Texas Local Government Code section 214.0012(a).
Texas City moved to dismiss Jaramillo's lawsuit for want of jurisdiction arguing (1) Jaramillo could not appeal the Abatement Order, (2) Jaramillo's appeal was untimely and filed in the wrong court, and (3) Texas City is immune from Jaramillo's intentional tort claims. Jaramillo did not respond to the motion. The trial court granted Texas City's motion to dismiss. Jaramillo appealed the order.
Discussion
In his first issue, Jaramillo contends the district court has jurisdiction over his appeal of the Abatement Order. In his second issue, he asserts the district court erred in granting Texas City's motion to dismiss for want of jurisdiction. We address Jaramillo's second issue first because it is dispositive.
A. Standard of Review
A trial court "must determine at its earliest opportunity whether it has the constitutional or statutory authority to decide the case before allowing the litigation to proceed." Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether a trial court has subject matter jurisdiction is a question of law we review de novo. Id. (citing Tex. Nat. Res. Conservation Comm 'n v. IT Davy, 74 S.W.3d 849, 855 (Tex. 2002)). The plaintiff has the initial burden to plead facts showing the trial court has jurisdiction. Id. (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd, 852 S.W.2d 440, 446 (Tex. 1993)). We construe the pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as true the factual allegations in the pleadings. See id. at 226, 228.
"Sovereign immunity from suit defeats a trial court's subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction." Id. at 225- 26; see also Texas Nat. Res. Conservation Comm'n v. White, 46 S.W.3d 864, 866- 67 (Tex. 2001) (treating "Motion to Dismiss for Lack of Jurisdiction Based on Sovereign Immunity" as plea to jurisdiction). There are two general categories of pleas to the jurisdiction: (1) those that challenge only the pleadings, and (2) those that present evidence to challenge the existence of jurisdictional facts. Miranda, 133 S.W.3d at 226-27.
When a plea to the jurisdiction challenges only the pleadings, we determine whether the pleader has alleged facts establishing the court's jurisdiction to hear the case. Id. at 226. Our de novo review looks to the pleader's intent and construes the pleadings in its favor. Id. If the plaintiff fails to plead facts establishing jurisdiction, but the petition does not show incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226-27. On the other hand, "[i]f the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend." Id. at 227.
B. Analysis
In its motion to dismiss for want of jurisdiction, Texas City argued the trial court lacked jurisdiction because Jaramillo cannot appeal the Abatement Order, his appeal was untimely, and immunity bars Jaramillo's tort claims. In his second issue, Jaramillo contends the trial court erred in granting Texas City's motion to dismiss for want of jurisdiction. He argues that because Texas City committed fraud and conspiracy in the consummation of the Abatement Order, the trial court had jurisdiction to look beyond the Abatement Order and determine the facts of the case de novo.
In his amended petition, Jaramillo alleged Texas City "intentionally misrepresented] the code violations, substandard building findings, fines and other facts concerning the Property [and] Plaintiffs reliance on these misrepresentations and Plaintiffs damages associated with these misrepresentations constitute fraud." Jaramillo further alleged "[t]he conduct of the defendant related to the inspection and condemnation of the property, the court proceedings, the fines involved in the proceedings and other concerted activity related to the property with the intent to induce Plaintiff into accepting the terms of the 'Agreed Order' constitutes civil conspiracy designed by the participants to take Plaintiffs Property." Jaramillo sought a declaratory judgment "declaring Defendant's actions, orders and rulings related to this matter null, void and of no affect [sic]." Essentially, he sought to declare the Abatement Order null and void based on alleged fraud and conspiracy, thus allowing the trial court to "look beyond" the Abatement Order to determine, de novo, whether the structures on his real property were "substandard"--an issue Jaramillo stipulated to in the Abatement Order. Jaramillo "seeks monetary relief over $200,000.00 but not more than $1,000,000" for his claims.
1. Tort Claims
Sovereign immunity and its counterpart for political subdivisions, governmental immunity, protect the State and its political subdivisions, including counties, cities, and municipalities, from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008); see also Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). "Absent a valid statutory or constitutional waiver, trial courts lack subject-matter jurisdiction to adjudicate lawsuits against municipalities." Suarez v. City of Texas City, 465 S.W.3d 623, 631 (Tex. 2015).
Jaramillo has not established a waiver of sovereign immunity for his fraud and conspiracy claims. The Texas Tort Claims Act ("TTCA") explicitly states that it does not apply to a claim "arising out of assault, battery, false imprisonment, or any other intentional tort . . . ." Tex. Civ. Prac. & Rem. Code § 101.057(2) (emphasis added); City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014) (explaining TTCA's "limited waiver does not apply to intentional torts"); Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex. App.- Houston [1st Dist.] 1999, pet. dism'd w.o.j.). Fraud and conspiracy are intentional torts. See Wije v. Burns, No. 01-19-00024-CV, 2020 WL 5269414, at *6 (Tex. App.-Houston [1st Dist.] Sept. 3, 2020, pet. denied) (mem. op.) ("Fraud, defamation, and intentional infliction of emotional distress are intentional torts."); Hohman, 6 S.W.3d at 777 ("Defamation, conspiracy, intentional infliction of emotional distress, and invasion of privacy are intentional torts.") (citing Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 617 (Tex. 1996). Consequently, the State and its governmental units retained immunity from Jaramillo's intentional tort claims.
We also note that civil conspiracy is not a standalone tort. It is a derivative tort that depends on the legal viability of an underlying tort, in this case fraud. Because the court lacks jurisdiction over Jaramillo's fraud claim, Jaramillo's civil conspiracy claim does not survive. West Fork Advisors, LLC v. SunGard Consulting Servs., LLC, 437 S.W.3d 917, 920 (Tex. App.-Dallas 2014, pet. denied) ("Regardless of the reason for the failure of the underlying tort, there can be no independent liability for civil conspiracy.").
2. Declaratory Judgment
Jaramillo's action for declaratory judgment fares no better. A declaratory judgment action does not confer jurisdiction on a trial court. Neither the Uniform
Declaratory Judgment Act ("UDJA") nor the Texas Declaratory Judgment Act ("TDJA") is an independent source of subject matter jurisdiction; they are available only when a court has existing jurisdiction over the underlying controversy. See IT-Davy, 74 S.W.3d at 855 ("The [U]DJA does not extend a trial court's jurisdiction . . . ."); Consumer Serv. Alliance of Tex., Inc. v. City of Dallas, 433 S.W.3d 796, 809 (Tex. App.-Dallas 2014, no pet.) ("[T]he [T]DJA is not an independent source of subject matter jurisdiction . . . ."); see also State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994) (noting UDJA "is merely a procedural device for deciding cases already within a court's jurisdiction").
Jaramillo alleged an unlawful taking of his property without due process of law under both the Texas and United States Constitutions.
Jaramillo did not establish jurisdiction for his fraud and conspiracy claims. The trial court therefore did not err by concluding it lacked subject matter jurisdiction over Jaramillo's declaratory judgment action, which did not confer jurisdiction on the court.
3. Due Process Claims
Jaramillo alleged an unlawful taking of his property without due process of law under both the Texas and United States Constitutions. His takings claim, however, is premised on his allegation that the Abatement Order is null and void because Texas City committed fraud and conspiracy in the consummation of the Abatement Order, and thus, he can relitigate whether the structures on his real property are substandard, an issue he claims the trial court should review de novo.Because Jaramillo's fraud and conspiracy claims and, concomitantly, his takings claim do not survive, he is not entitled to a de novo determination over whether the structures on his real property are "substandard." His due process claim fails.
In the Abatement Order, Jaramillo stipulated that the structures on his property are substandard. "In a takings case, a nuisance finding generally precludes compensation for the government's destruction of property." City of Dallas v. Stewart, 361 S.W.3d 562, 574 (Tex. 2012).
Jaramillo cites City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012), a takings case, in support of his assertion that he is entitled to de novo review. In Stewart, the Texas Supreme Court held that a nuisance determination by the Dallas Urban Rehabilitation Standards Board, a thirty-member administrative body that enforces municipal zoning ordinances, was not entitled to preclusive effect in the property owner's takings case, and thus the trial court properly determined the issue de novo. See id. at 580-81. The Court held that because takings suits are fundamentally constitutional suits, they "must ultimately be decided by a court rather than an agency." Id. at 568.
Stewart is distinguishable. Jaramillo stipulated in the Abatement Order that the structures on his real property were substandard, and the Municipal Court entered a judgment based on the agreed Abatement Order. The nuisance determination was not adjudicated by an administrative agency. And there was no similar agreed abatement order in Stewart.
Jaramillo's claim also fails because he did not preserve any error over entry of the Abatement Order. It is well settled that a judgment entered on an agreement of the parties cures all non-jurisdictional defects. See Reule v. Sherwood Valley I Council of Co-Owners, Inc., No. 01-17-00593-CV, 2019 WL 4196898, at *2 (Tex. App.-Houston [1st Dist.] Sept. 5, 2019, no pet.) (mem. op.); One 2000 Int'l Truck Tractor v. State, No. 01-11-00072-CV, 2012 WL 5458421, at *1 (Tex. App.- Houston [1st Dist.] Nov. 8, 2012, no pet.) (mem. op.) (citing Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex. App.-Houston [1st Dist.] 2003, no pet.)); see also Mallia v. Mallia, No. 14-07-00695-CV, 2009 WL 909588, at *1 (Tex. App.- Houston [14th Dist.] Apr. 7, 2009, no pet.) (mem. op.). Absent allegations and proof of fraud, collusion, or misrepresentation, a party generally cannot appeal from or attack a judgment to which he has consented or agreed. Reedom v. 5950 Boca Raton LP, No. 02-18-00269-CV, 2019 WL 4010219, at *1 (Tex. App.-Fort Worth Aug. 26, 2019, no pet.) (mem. op.); Authorlee v. Tuboscope Vetco Int'l, Inc., 274 S.W.3d 111, 119 (Tex. App.-Houston [1st Dist.] 2008, pet. denied).
A party may revoke his consent to an agreement at any time before an agreed judgment is rendered on the agreement. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995). A party who moves the trial court to accept a settlement agreement and to enter judgment accordingly may not later attack that judgment. Casu v. Marathon Ref. Co., 896 S.W.2d 388, 389 (Tex. App.-Houston [1st Dist.] 1995, writ denied). To preserve error for appeal, a party must specify that his agreement with the judgment is as to form, but not as to substance and outcome. See First Nat'l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989); see also Mailhot, 124 S.W.3d at 777.
The Municipal Court entered the Abatement Order on July 15, 2020. Under the heading "Approved and Entry Requested," the Texas City prosecutor and Jaramillo signed the Abatement Order. There is no language limiting Jaramillo's consent as to form only, see Fojtik, 775 S.W.2d at 633, and Jaramillo did not revoke his consent at any time before the trial court rendered judgment on the agreed Abatement Order. See Leal, 892 S.W.2d at 857. On the contrary, Jaramillo and the Texas City prosecutor discussed the terms of the Abatement Order during the abatement hearing. The Municipal Court judge also asked Jaramillo about his agreement to the order: "So I take it if you sign it, you agree to what . . . he stated. And he's saying that is what's in the four corners of that document, okay? And you are in agreement with that? You have to verbally respond." Jaramillo responded: "Yes."
Jaramillo argues the Municipal Court judge did not hear testimony or admit any evidence to support a finding that the structures on his real property were substandard. But Jaramillo stipulated to that key fact in the Abatement Order: "Jaramillo stipulates and agrees that the buildings and structures located on his property are substandard structures as defined by the City's ordinances, Title XV: Land Use, Chapter 150; Building Regulations; Construction § 150.033[.]" Given such stipulation in the parties' Abatement Order, such evidence was unnecessary. See Mailhot, 124 S.W.3d at 777 (holding party who asks trial court to accept settlement agreement and enter judgment accordingly may not later attack that judgment).
We overrule Jaramillo's second issue.
Because we hold the trial court properly concluded it lacked jurisdiction over Jaramillo's claims, we need not address Jaramillo's first issue.
Conclusion
We affirm the trial court's order granting Texas City's motion to dismiss Jaramillo's suit for want of jurisdiction.