Opinion
No. 05-02-00005-CV
Opinion Filed January 7, 2003
On Appeal from the 298th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. 00-08083-M, 01-10781-M
AFFIRM
Before Justices MORRIS, JAMES, and FITZGERALD.
MEMORANDUM OPINION
This appeal centers on certain orders, entered by the City of Garland's Housing Standards Board (the "Board"), which ultimately mandated the demolition of apartment buildings owned by appellant Walnut Villa Apartments, L.L.C. ("Walnut Villa"). In this consolidated matter, Walnut Villa appeals (1) the trial court's affirmation of the Board's orders, and (2) the trial court's order dissolving the temporary injunction that had prevented demolition while the orders were being reviewed. Walnut Villa raises six issues before this Court, challenging the procedures employed in the trial court's review of the orders on a number of grounds and challenging the sufficiency of the evidence to support the trial court's substantive findings. After reviewing the matters before us, we conclude all dispositive issues are clearly settled in law. Accordingly, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1. The factual nature of this case, as well as its procedural history, pleadings, and evidence are known to the parties. Therefore, we do not recount these matters.
Motions to Dismiss
Prior to this Court's consolidation of Walnut Villa's two appeals, the City filed a motion to dismiss in each appeal. The City argued the appeal of the December 13, 2001 order lifting the injunction and severing the case should be dismissed for mootness. It argued further that the November 29, 2001 order affirming the Board's orders should be dismissed for lack of jurisdiction because it purports to be an appeal from a final order in the original case, which was never adjudicated to a final order. Walnut Villa filed no response to these motions. We conclude that we have jurisdiction over the appealed-from November 29 order, regardless of the cause number the order bears. We also conclude that Walnut Villa failed to brief any complaints concerning the severance order or concerning its objections to the visiting judge; thus, we need not address these issues discussed in the motions to dismiss. Accordingly, we deny the motions to dismiss and decide the single non-jurisdictional issue raised by both Walnut Villa and the City — the propriety of the decision to lift the temporary injunction — as an appeal issue rather than under a dismissal rubric.
The November 29 order resolved the substantive issues before this Court. Those issues were subsequently severed and assigned a new cause number by the trial court. However, as it was entered on November 29, the order bore the original cause number. That fact does not turn Walnut Villa's appeal of the order into an inappropriate appeal of the issues that remained after the severance.
Bifurcation-Related Issues
Walnut Villa's first three issues stem from the trial court's decision to bifurcate the proceedings before it. Walnut Villa argues the bifurcation order was "unclear, confusing, and inappropriate" and led to an "unjust decision on the merits." Walnut Villa argues further that by including the issue of constitutional due process notice within the trial of the bifurcated review of the Board's orders, the trial court compounded the purported violation of Walnut Villa's due process. And Walnut Villa argues that this Court's opinion upholding the imposition of the temporary injunction created law of the case that was disregarded by the trial court in the bifurcated proceeding. We reject these arguments. As a threshold matter, Walnut Villa has not preserved objections to the bifurcation order or process for our review. The record contains no objection by Walnut Villa to the order or to the inclusion of the notice issue within the trial of the bifurcated review of the Board's orders. The appellant must see that trial court receives a record sufficient to show reversible error. See Tex.R.App.P. 34.6(b); see also Budd v. Gay, 846 S.W.2d 521, 523 (Tex.App.-Houston [14th Dist.] 1993, no writ) (holding that, without a sufficient record, the reviewing court cannot determine whether the trial court committed error or whether error was properly preserved). Walnut Villa has failed to provide us with such a record and, accordingly, we can find no abuse of discretion in the trial court's ordering the bifurcation of proceedings as it did. We decide Walnut Villa's first three issues against it.
In oral argument, counsel for Walnut Hill relied upon a reference to an objection made by Judge Solis in his order dismissing Walnut Villa's claims re-filed in federal court. Such a reference does not tell us what objection Walnut Villa made or what the objection encompassed; it cannot serve to preserve error or to guide our review of the trial court proceedings.
Lifting of the Temporary Injunction
In its fourth issue, Walnut Villa complains that the trial court erroneously lifted the temporary injunction. That injunction, inter alia, forbade the City's enforcement of its Board's orders "prior to the conclusion of final hearing on the merits herein, or further orders of this Court." The record establishes that, after the injunction was lifted, the Board's orders were enforced and the apartments at issue were razed. The purpose of a temporary injunction is to maintain the status quo, but no decision by this Court could return these parties to a pre-demolition status. Questions about the propriety of an injunction are moot once the injunction can no longer be of force and effect. See, e.g., Nat'l Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 88 (Tex. 1999). We are prohibited from deciding moot controversies. Id. Accordingly, we resolve Walnut Villa's fourth issue against it.
Sufficiency of the Evidence
In its final issues, Walnut Villa charges that the trial court's conclusions concerning the validity of the Board's orders and the existence of adequate notice to Walnut Villa of the Board's proposed actions are not supported by sufficient evidence. We disagree.
Validity of Board's Orders
Walnut Villa sought the district court's review of the Board's orders pursuant to the local government code. The code provides for "a hearing under the substantial evidence rule," and it allows the district court to "reverse or affirm, in whole or in part, or . . . modify the decision brought up for review." Tex. Loc. Gov't Code Ann. § 54.039(f). In applying the substantial evidence standard of review, we may not substitute our judgment for that of the agency. Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). Our concern is not whether the agency's decision was correct, but only whether the record demonstrates some reasonable basis for its action. Id. We will affirm the agency's findings if there is more than a scintilla of evidence to support them. Id.
In this case, the district court concluded that substantial evidence did support the Board's orders, and it affirmed those orders in their entirety. Walnut Villa has argued in this Court that the district court's conclusion was erroneous because the City's evidence before the Board lacked specificity and was incomplete. Specifically, Walnut Villa argues that the City did not present evidence on all of the twenty-one buildings (and 114 units) that comprised the apartment complex. Walnut Villa argues that "only" 39% of the complex was proven to have ongoing, uncorrected problems at the time of the Board hearing. That number is significant in and of itself. However, Walnut Villa's argument also understates both the volume and nature of the offenses documented by the City. The record establishes that the City's initial inspection of the property included approximately 99 of the 114 units and yielded 1608 violation in the interior of the buildings and 169 on the exterior. Moreover, the City presented evidence of the type of violations that could not be confined to limited areas of the complex, including electrical and natural gas hazards, water and sewage leaks and sewage back-ups, and rodent infestations. Indeed, Richard Briley from the City's Health Department took part of the initial inspection as a consultant to the code compliance people, and he testified:
I can honestly say before you people that in my 18 years of doing this job, I've never found a building this deteriorated or a complex this deteriorated interiorly. Some of the exterior was comparable.
The district court correctly concluded that substantial evidence supported the Board's orders mandating the apartments be demolished. We decide Walnut Villa's fifth issue against it.
Adequate Notice of Board Proceedings
Finally, Walnut Villa argues the evidence is insufficient to support the district court's conclusion that Walnut Hills received adequate notice of the Board's hearings. Walnut Villa concedes it received notice of the date and time of the hearing and that its representatives appeared and participated in the hearing. It does not allege that the City failed to comply with statutory notice requirements. Instead, it complains that (1) the notice given did not explain why Walnut Villa was "being summoned" to a hearing before the Board, and (2) the City presented no evidence of deficiencies that it had notified Walnut Hill about and that remained in need of correction.
The Board's order includes findings of fact and conclusions of law indicating proper notice was given as a matter of law. The trial court requested, and the City filed, the Board's full administrative record. According to the Notice of Filing, that administrative record included:
records of the Code Compliance Department evidencing notice given concerning the Garland Housing Standard Board's September 7, 2000, hearing in re: Walnut Villa Apartments, L.L.C., consisting of 322 single sided pages.
Walnut Hill has not brought forward this record of the evidence from the Board hearing. Walnut Villa has failed to establish the district court erroneously affirmed the Board's conclusion that Walnut Villa did receive proper notice of the Board's proceedings. Accordingly, we resolve Walnut Villa's sixth and final issue against it as well.
We affirm the judgment of the district court in its entirety.