Opinion
NO. 09-19-00047-CV
08-06-2020
REMA CHARLES WOLF, Appellant v. THE CITY OF PORT ARTHUR, Appellee
On Appeal from the 136th District Court Jefferson County, Texas
Trial Cause No. D-202,920
MEMORANDUM OPINION
Pro se Appellant Rema Charles Wolf ("Wolf" or "Appellant") sought injunctive relief and damages in the trial court against Appellee, the City of Port Arthur ("Appellee" or "the City"). In this accelerated appeal, Appellant appeals from an Order Denying Application for Temporary Restraining Order and Temporary Injunction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4). We affirm and we dismiss in part.
Procedural Background
Wolf's Original Petition
On November 16, 2018, Wolf filed an Original Petition and Application for Temporary Restraining Order and Temporary Injunction against the City. In her petition, Wolf alleged that the City had failed to grant her a permit to repair a building she purchased that was located at 1101 Proctor Street in Port Arthur. According to the petition, the building had sustained damage during Hurricane Harvey but "was never hazardous for anybody[.]" Wolf alleged that she had hired an inspector to assess the damage and hoped to get a permit to make repairs, but the City never provided her with a permit.
The petition made claims against the City for fraud, harassment, and trespass, and sought damages. In addition, the petition sought a temporary restraining order to restrain the City from demolishing any buildings at 1101 Proctor Street, 3700 Doctors Drive, and 141 Avant Lane in Port Arthur and "to put a stop from the harassment and all illegal actions." The petition also asked the court to "enter a Restraining Order, and order the Court to allow her by law to get the permit to fix her building[.]" On November 16, 2018, the trial court entered an order granting the application for a temporary restraining order (TRO) and set the matter for a temporary injunction hearing.
On November 19, 2018, Wolf filed a "Motion for Violation of Court Order on a Restraining Order and Destroying the Building at 1101 Proctor Street and Destroying Everything Inside the Building by Defendant[.]" Therein, Wolf alleged that she had presented the trial court's order granting the TRO to the City's Director of Development Services, who directed her to the legal department. Wolf alleged that someone in the legal department then directed her to the City Manager and that Wolf eventually spoke with the City Attorney. According to the motion, the City demolished her building and destroyed all merchandise in the building, for which Wolf sought damages.
The City's Answer and Plea to the Jurisdiction
The City filed an answer on November 19, 2018, asserting a general denial and alleging that the court lacked subject-matter jurisdiction over Wolf's petition because the City was entitled to governmental immunity and Wolf had failed to allege any waiver of the City's immunity. The City also alleged that section 214.0012 of the Texas Local Government Code provides the exclusive remedy and basis for judicial review of actions related to the City's Construction Board of Adjustments and Appeals. According to the City, Wolf had failed to exhaust her administrative remedies under Chapter 214 of the Local Government Code, which left the trial court without subject-matter jurisdiction over her claims against the City. The City requested that the trial court dismiss Wolf's lawsuit with prejudice.
On November 27, 2018, the City also filed a Plea to Jurisdiction and Motion to Dismiss. The City alleged that a notice of public hearing was sent to Wolf on February 7, 2018, regarding the subject property, the Construction Board of Adjustments and Appeals ("Board") held a public hearing on March 15, 2018, and the sign-in document from the hearing reflects that Wolf was present at the hearing. At the meeting, the Board determined that the structure at 1101 Proctor Street needed to be demolished based on the failure to make certain repairs, and the Board entered a ninety-day raze-or-repair order with respect to the structure that was provided to Wolf. According to the plea, the City sent Wolf a letter on October 25, 2018 that notified her of the upcoming demolition, demolition began on November 15, 2018, and the demolition was two-thirds completed when the City received notice of the TRO. The City asserted that the building was structurally unsound and posed a hazard to the public's health, safety, and welfare. The City further argued that Wolf's petition was time-barred under section 214.0012 of the Texas Local Government Code, which requires a plaintiff to appeal an order of the Board within thirty days. The City's plea also alleged that Wolf had failed to allege facts sufficient to invoke the court's jurisdiction, failed to state claims for fraud and trespassing sufficient to put the City on notice, and failed to state facts adequate to give notice of her claimed damages. The City asked the court to dismiss Wolf's petition. The City also filed a brief in support of its plea on January 28, 2019.
Extension of the TRO
After a hearing, on November 29, 2018, the trial court entered an order extending the TRO until December 14, 2018. The order required Wolf to erect safety fencing around the property. On December 3, 2018, Wolf filed a notice with the trial court that fencing had been placed around the property, with photos attached.
Wolf's Motion for Temporary Injunction
On December 14, 2018, Wolf filed a Motion for Temporary Injunction. Wolf's motion alleged that pursuant to the public hearing on March 15, 2018, the Board agreed to give her ninety days to make repairs, but that Wolf had been unable to obtain necessary permits from the City despite making repeated efforts. Wolf further alleged that, after seeing a bulldozer on the property on November 16, 2018, Wolf sought a restraining order against the City, and she alleged the City disobeyed the restraining order by demolishing about seventy percent of the building. According to Wolf, the Texas Constitution requires an independent court review of a city's decision to demolish a substandard building. Wolf further alleged that the City's conduct was without her consent or permission, she has no adequate remedy at law, and the court should enjoin the City from destroying the property at 1101 Proctor Street and award her damages.
Wolf's Response to the City's Plea to the Jurisdiction
Wolf also filed a response to the City's plea to the jurisdiction. In her response, Wolf asserted that her claims against the City are constitutional claims and that governmental immunity does not protect the City from such claims. According to Wolf, the Texas Constitution requires an independent court review of a city's decision to demolish a substandard building. She also alleged that the building at issue was not a dangerous structure and was "not a threat to anybody[.]" Wolf further alleged that the City committed fraud by not issuing her the permits she needed to make repairs and the City waived immunity by committing fraud. Wolf alleged that the City did not wait thirty days after notifying Wolf before beginning demolition work as required by law. Wolf asked the court to deny the City's plea to the jurisdiction and award her damages, including:
. . . [t]he price for the building [of] $750,000.00 as the Plaintiff warned and notified the City before they demolished the building on the Certified Letter Plaintiff sent to the Defendant on October 10, 2018 and they demolished the building after they rec[ei]ved the Certified Letter from Plaintiff.Attached to Wolf's response was a copy of an October 25, 2018 letter to Wolf from the Director of Code Compliance for the City that stated:
The City of Port Arthur hereby notifies you that we have awarded bids to demolish the structure(s) at [1101 Procter Street]. In order to obtain an extension of time for the removal of personal property, you must appear or notify the Demolition Coordinator. This request should be made within ten (10) days from receipt of this letter. In order to receive
an extension you must provide a valid and justifiable cause for this extension.Wolf also included as an exhibit a copy of a letter dated March 22, 2018, to her from the Director of Inspection and Code Compliance for the City informing her that the Board ordered the property at 1101 Proctor Street to be razed or repaired within ninety days.
NO FURTHER NOTICE WILL BE MADE PRIOR TO THE SCHEDULED DEMOLITION OF THIS PROPERTY AS HAS BEEN PREVIOUSLY ORDERED BY THE CITY'S BOARD OF ADJUSTMENTS AND APPEALS.
Hearing on Wolf's Application for An Injunction
On February 4, 2019, the court held a hearing on Wolf's application for injunctive relief. At the outset, the court stated that "the City has stated very clearly that they plan to demolish the remaining portions of the structure that's at issue" and "what the Court would need to see in order to issue the injunction is -- would have to be sufficiently established by a preponderance of the evidence that the demolition of the remaining portion of the structure would result in [] irreparable injury[]" that could not be fully or adequately compensated in damages.
Abrham Wolf testified that his wife purchased the subject property in 2017 at a sheriff's sale for $19,000, he had planned to establish an auto parts store at the subject property, and one of the reasons for selecting this specific property was "the history of the building." Mr. Wolf further testified that he intended to use the front of the building for his business, and the back of the building has paintings on the walls depicting the "story" of Port Arthur. According to Mr. Wolf, when he and his wife purchased the property, he was not aware that the building was set to be demolished. Mr. Wolf agreed that the photos in Exhibit H depicted the building "before demolition took place[]" and that Exhibit L depicted the building at present, "after demolition has taken place[.]" Mr. Wolf agreed that when he purchased the property, it needed about $7,500 of painting and sheet metal work before it could be used commercially and he had funding lined up for the repairs. According to Mr. Wolf, he obtained contractors' estimates after the building was partially demolished, and it would cost about $150,000 to repair the building and bring it into compliance with city codes, but he did not bring bids, contracts, or other evidence of this estimate with him. Mr. Wolf testified that the subject property had been declared a historical site, but he agreed he did not bring evidence of such declaration to the hearing. Mr. Wolf testified that he placed a fence around the property because the court ordered it, but that a certain portion of the property did not need a fence because it was covered. Wolf's attorney argued that based on the subject property's "historical value," "it would be an irreparable loss to allow for the continuation of the demolition."
The plaintiff, Abrham Wolf's wife, did not testify.
Darlene Pierre, a licensed building inspector and the code compliance manager for the City of Port Arthur, testified for the City. Pierre agreed that Exhibit M was a letter dated December 19, 2011 to the Texas Historical Commission inquiring whether the subject property was eligible for designation as a historical property, and the letter includes a stamp by a State Historic Preservation Officer dated January 2, 2012, stating the property is "NOT ELIGIBLE[.]" Pierre also agreed that before the subject property was demolished, someone from her department determined that the building was eligible for demolition. Pierre agreed that after the building was partially demolished, it increased the danger to the public. According to Pierre, the court had required a fence be placed around the property, but the fence did not look stable and did not completely surround the property such that it was possible for people to go inside the partially demolished building. According to Pierre, the subject property is one block from a public park and is on the Mardi Gras parade route. Pierre testified that she believed the building should be demolished for the public's safety.
The trial court offered Mr. Wolf an opportunity to use one of the court's computers to consult the National Registry of Historic Places database, but the record does not indicate that he did so. At the conclusion of the hearing, the trial court stated in relevant part:
. . . the only thing before the Court is what's remaining post-demolition.
. . .
I can't issue an order to retroactively undemolish a building that's already been demolished.
. . .
I haven't heard any direct evidence or really any circumstantial evidence that it has a particular historical value or recognized as being a historical site.
. . .
. . . I think the pictures that were painted are, in fact, unique. . . . [T]heoretically an artist could be retained [] to repaint those images, duplicate those images, on another wall and another structure. . . . I don't know that those works of art are original works of art of a significant artist that would require the preservation of those images.
. . .
[T]he Court doesn't find that sufficient evidence has been presented as to the necessary element of irreparable loss and that [] any loss that's incurred from the demolition of the remaining portions of this structure could be properly addressed with a quantifiable sum of money.
After the hearing, the trial court entered an order denying Wolf's application and finding that the City's plea to the jurisdiction and motion to dismiss were moot. In the order, the court also found the evidence insufficient to grant the application for injunctive relief and ordered that the previous order granting a TRO would expire at midnight on February 4, 2019.
Wolf timely appealed this order on February 19, 2019 and also filed in the trial court a Notice of Claim Against Defendant seeking an award of damages against the City. On March 14, 2019, Wolf filed a Motion Following Up with Application for Temporary Restraining Order and Setting Hearing for Temporary Injunction, which the trial court granted. Thereafter, the City again filed a second plea to the jurisdiction and motion to dismiss in the trial court, arguing that Wolf's application was untimely and was an attempt "to piggyback into this cause, completely new cause of action and thus obviating the necessity of filing an original pleading or application in a new cause of action." The appellate record does not indicate that the trial court ruled on the City's second plea to the jurisdiction.
Issues
Appellant articulates nine issues, which we quote below:
1. The trial court erred when they did not hold Defendant accountable for disobeying the Court Order after they already entered an Order Granting the Temporary Restraining Order[;] however, the Defendant did not comply with that Temporary Restraining Order entered on November 16, 2018 and went and destroyed 40% of Appellant[']s building.
2. The trial court erred when they did not make the Defendant pay for the damages they created while there was a Restraining Order.
3. The trial court erred when they entered an Order that Appellant must secure the premises by putting a fence around the property in 4 days and Defendant was throwing trash over the fence and the Court did not hold Defendant in Contempt, trespassing, and illegal dumping.
4. The trial court erred when they did not mention in the Order that was entered that Appellant has a right to Appeal that Order in 30 days as the Texas Rules of Appellate Procedure says, and entered an Order that the previous order granting a temporary restraining order shall expire at midnight on the night of February 4, 2019, without protecting Appellant from the harm and damages of Defendant or further damages that could be done by Defendant.
5. The trial court erred when they entered an Order Denying Application for Temporary Restraining Order and Temporary Injunction without any evidence from Defendant to show the Court the Texas Rules of Civil Procedure that the Court has to comply
with in order to deny Appellant[']s Application for Temporary Restraining Order and Temporary Injunction.
6. The trial court erred when they entered an Order Denying Application for Temporary Restraining Order and Temporary Injunction while Appellant['s] building was still in danger.
7. The trial court erred when they did not Order Defendant to pay for the damages that occurred while there was a Temporary Restraining Order and Temporary Injunction when Defendant disobeyed the Trial Court[']s Order.
8. The trial court erred when they entered an Order Denying Application for Temporary Restraining Order and Temporary Injunction filed by Appellant after the Court had already entered an Order that Appellant must secure the premises by putting a fence around the property and the Court gave Appellant only four days to do that.
9. The trial court erred in Denying the Application for Temporary Restraining Order and Temporary Injunction because the fact issue that Defendant violated the Temporary Restraining Order and Temporary Injunction and the basis of the Trial Court's Order is when the Court said "after receiving evidence in open court, the Court finds that the evidence is insufficient and DENIES the Plaintiff[']s Application for Temporary Restraining Order and Temporary Injunction."
Standard of Review and Applicable Law
We have jurisdiction to consider an interlocutory appeal from an order granting or denying temporary injunctive relief. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (authorizing the appeal of an interlocutory order granting or refusing a temporary injunction). A temporary injunction's purpose is to preserve the status quo of the litigation's subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993); Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139 (Tex. App.—Dallas 1974, no writ)). A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Id. (citing Walling, 863 S.W.2d at 57). To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Id. (citing Walling, 863 S.W.2d at 57; Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968)). An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. Id. (citing Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex. App.—Dallas 1989, no writ)). The party seeking the temporary injunction bears the burden of proof thereon. See Herzog Servs., Inc. v. Kansas City S. Ry. Co., No. 09-02-262-CV, 2002 Tex. App. LEXIS 6353, at *3 (Tex. App.—Beaumont Aug. 30, 2002, no pet.) (citing Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 718 (Tex. App.—Corpus Christi 2001, no pet.)). During a hearing on a temporary injunction, the trial court acts as the finder of fact. Sills v. Wedgeworth, No. 09-17-00481-CV, 2018 Tex. App. LEXIS 5247, at **9-10 (Tex. App.—Beaumont July 12, 2018, no pet.) (mem. op.). Whether to grant or deny a temporary injunction is within the trial court's sound discretion. Butnaru, 84 S.W.3d at 204 (citing Walling, 863 S.W.2d at 58; State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984)).
A reviewing court should reverse an order granting injunctive relief only if the trial court abused that discretion. Id. (citing Walling, 863 S.W.2d at 58; Walker, 679 S.W.2d at 485). In reviewing the trial court's ruling on a request for injunctive relief, the merits of the underlying case are not presented for appellate review, and our review is "strictly limited to determination of whether there has been a clear abuse of discretion by the trial court in granting or denying the interlocutory order." See Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978). In reviewing the evidence from a temporary injunction hearing, and when a trial court has not been requested to enter findings of fact or conclusions of law, we view the evidence in the light most favorable to the trial court's order and indulge every reasonable inference in its favor. See Crosstex NGL Pipeline, L.P. v. Reins Rd. Farms-1, Ltd., 404 S.W.3d 754, 757 (Tex. App.—Beaumont 2013, no pet.) (citing Thomas v. Beaumont Heritage Soc'y, 296 S.W.3d 350, 352 (Tex. App.—Beaumont 2009, no pet.)). The reviewing court must not substitute its judgment for the trial court's judgment unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion or was outside the zone of reasonable disagreement. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005); Butnaru, 84 S.W.3d at 204 (citing Johnson v. Fourth Ct. of Appeals, 700 S.W.2d 916, 918 (Tex. 1985); Davis, 571 S.W.2d at 861-62).
We construe an appellant's pro se brief liberally. See Giddens v. Brooks, 92 S.W.3d 878, 880 (Tex. App.—Beaumont 2002, pet. denied) ("pro se pleadings and briefs are to be liberally construed[]"); see also Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989) (a reviewing court construes points of error liberally to obtain a just, fair, and equitable adjudication of the parties' rights). Nevertheless, a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
Scope of the Appeal
Unless a statute authorizes an interlocutory appeal, appellate courts generally only have jurisdiction over final judgments. See CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011) (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992)); Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840-41 (Tex. 2007); see also Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (listing orders that may be appealed on an interlocutory basis). "[W]hen there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties." Lehmann, 39 S.W.3d at 205. To preserve error for appeal, a party must make a timely request, objection, or motion stating the grounds for the ruling the party seeks and obtain a ruling thereon. See Tex. R. App. P. 33.1(a)(1).
In this case, several of Wolf's issues on appeal complain about matters not within the scope of the order being appealed. Appellant's first issue complains that the trial court did not "hold Defendant accountable" for disobeying a court order and destroying a portion of the subject property without giving notice to Wolf. Appellant's second and seventh issues complain that the trial court failed to order the City to pay damages. The record before us is limited to the trial court's denial of injunctive relief. The record includes no appealable ruling, order, or judgment granting or denying damages. Therefore, we dismiss Appellant's first, second, and seventh issues for lack of jurisdiction. See Tex. R. App. P. 43.2(f).
Appellant's third issue complains that the trial court erred by entering an order that gave Wolf only four days to place a fence around the subject property and erred by not holding the City "in [c]ontempt, trespassing, and illegal dumping." Appellant's brief provides no record cites showing that she made a timely request, objection, or motion challenging the order requiring fencing or seeking to hold the City in contempt. See Tex. R. App. P. 38.1(i). Neither does the record include any appealable ruling, order, or judgment on these matters. Therefore, we dismiss Appellant's third issue for lack of jurisdiction. See Tex. R. App. P. 43.2(f).
Order Denying Injunctive Relief
We construe the remainder of Appellant's issues (issues four, five, six, eight, and nine) to argue that the trial court abused its discretion in denying Appellant's Application for Temporary Restraining Order and Temporary Injunction and that the evidence was insufficient to support the trial court's order.
The City argues that "Wolf's issues on appeal are currently, and forever, moot, as the building sought to be protected by the denied temporary injunction, has admittedly already been demolished[]" and this Court lacks jurisdiction over this appeal. "An appeal from an order on a temporary injunction becomes moot when the act sought to be enjoined occurs." TD Reo Fund, LLC v. City of Baytown, Inland Env'ts, Ltd., No. 14-16-00128-CV, 2016 Tex. App. LEXIS 3025, at *1 (Tex. App.—Houston [14th Dist.] Mar. 24, 2016, no pet.) (per curiam) (mem. op.) (citing Gen. Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 570-71 (Tex. 1990)). An appellate court lacks jurisdiction to consider a moot appeal. NCAA v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). That said, it is undisputed that not all of the building had been demolished at the time of the hearing, so we cannot agree that the matter on appeal is moot.
Appellant argues that the City had already demolished about 40% of the subject property. And at the hearing, the trial court stated that the City intended "to demolish the remaining portions" of the subject property. The record reflects that the City sought further demolition, and we cannot say the request for injunctive relief was mooted by destruction of the subject property or the occurrence of the act sought to be enjoined. See TD Reo Fund, LLC, 2016 Tex. App. LEXIS 3025, at *1.
In this case, the trial court stated at the conclusion of the hearing that it had not found sufficient evidence of irreparable loss. The code compliance manager for the City testified that it had asked the Texas Historical Commission whether the subject property was eligible for designation as a historical property and the Commission responded that it was not. Appellant provided no documentary evidence of the subject property's historical or artistic value, and Mr. Wolf testified that it would cost about $150,000 to repair the building and bring it into compliance with city codes. Deferring to the trial court's role as factfinder, we cannot say the trial court abused its discretion in denying the request for further injunctive relief, and its ruling was not outside the zone of reasonable disagreement. See City of Keller, 168 S.W.3d at 822. Having determined that the trial court did not abuse its discretion in concluding that Appellant had not presented sufficient evidence of irreparable harm, we need not examine the other requirements for a temporary injunction. See Tex. R. App. P. 47.1.
Appellant also complains that the trial court erred by failing to include in its order that Appellant had the right to appeal the order in thirty days. Appellant provides no legal support for this argument, and we find the issue inadequately briefed. See Tex. R. App. P. 38.1(i); Kuykendall v. State, 335 S.W.3d 429, 436 (Tex. App.—Beaumont 2011, pet. ref'd) (inadequate briefing waives error on appeal). And the complaint is not relevant to the disposition herein because the record reflects that Appellant timely filed an appeal in this case.
In conclusion, we have dismissed plaintiff's first, second, third, and seventh issues. We have affirmed the trial court's denial of the temporary injunction, and we have overruled Appellant's fourth, fifth, sixth, eighth, and ninth issues.
AFFIRMED AND DISMISSED IN PART.
/s/_________
LEANNE JOHNSON
Justice Submitted on February 13, 2020
Opinion Delivered August 6, 2020 Before Kreger, Horton and Johnson, JJ.