City of Beaumont v. Yvonne Como

IN THE SUPREME COURT OF TEXAS

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NO . 11-0888

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CITY OF BEAUMONT, PETITIONER,

v.

YVONNE COMO , RESPONDENT

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE NINTH DISTRICT OF TEXAS

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PER CURIAM

The City notified a building owner that her property was in disrepair and that, unless she

repaired it, the City might demolish it. After the owner failed to remedy the problem, the City

declared the property a public nuisance and condemned it. Rather than appeal the nuisance

determination, the property owner asserted a takings claim after the demolition. Because she is

precluded from doing so, we reverse in part the court of appeals’ judgment and render judgment

dismissing her claims.

Yvonne Como owned a commercial building in the City of Beaumont. The City informed

Como that her building was vacant, neglected, deteriorated, and dilapidated, and that the City had

scheduled a Dilapidated Structure Public Hearing. The City warned Como that if she failed to

address the situation, the City might demolish the structure.

Before the hearing, Como requested a copy of the City’s file, which included reports and

evaluations made after the City had inspected her property. She then notified the City that she would

not attend the hearing and emphasized her belief that the City was singling out her property even

though nearby buildings in similar condition had not been slated for demolition. At the hearing, the

City Council passed an ordinance deferring action on the building for at least forty-five days. Como

was required to secure the building during this time.

After the forty-five days had lapsed, the City notified Como that her building remained in

disrepair and that the City had scheduled another Dilapidated Structure Public Hearing. Como

responded that she would not attend the hearing and that she disagreed that her building qualified

as a dangerous structure under the applicable ordinances. At the hearing, the City Council passed

an ordinance declaring Como’s building (along with eighty-seven other structures) a public nuisance

and condemned it—a decision Como never appealed. Six months later, the City began demolishing

the building.

More than a year after demolition, Como sued the City, ultimately asserting eight claims.

The first three—a takings claim, an Equal Protection claim, and an Equal Rights Amendment

claim—were brought under the Texas Constitution, and the fourth was based on the Texas Public

Information Act. The last four—another takings claim, an improper seizure claim, and two Equal

Protection claims—were brought under the United States Constitution. The City filed an immunity-

based plea to the jurisdiction, which the trial court granted.

Como appealed, and the court of appeals initially affirmed the trial court’s judgment but then

granted rehearing after our initial opinion in City of Dallas v. Stewart, 54 Tex. Sup. Ct. J. 1348 (July

1, 2011), opinion withdrawn, substituted opinion at 361 S.W.3d 562 (Tex. 2012). 345 S.W.3d 786,

789. The court read Stewart to hold that a nuisance determination could not be finally determined

in an administrative proceeding. Id. at 792. Thus, even though “Como could have, but did not, avail

herself of her right to challenge the City’s decision, the administrative-level decision to demolish

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Como’s property [did] not preclude Como from seeking a de novo review of that decision in a

constitutional suit.” Id. The court determined that Como’s state and federal takings claims survived

and reversed and remanded the trial court’s judgment on those claims. Id. at 799. The court

affirmed the remainder of the judgment, except for Como’s Public Information Act claim, which the

court dismissed as moot. Id. The City petitioned this Court for review.

We have since clarified that a property owner is not entitled to de novo review of an

administrative nuisance determination in all circumstances. See City of Dall. v. Stewart, 361 S.W.3d

562, 580 (Tex. 2012) (stating that “de novo review is required only when a nuisance determination

is appealed”).1 Instead, “a party asserting a taking based on an allegedly improper administrative

nuisance determination must appeal that determination and assert [her] takings claim in that

proceeding.” Patel v. City of Everman, 361 S.W.3d 600, 601 (Tex. 2012) (per curiam); see also

Stewart, 361 S.W.3d at 579 (holding that “takings claims must be asserted on appeal from the

administrative nuisance determination”). A party must also “avail [herself] of statutory remedies that

may moot [her] takings claim, rather than directly institute a separate proceeding asserting such a

claim.” Id.; see also City of Dall. v. VSC, LLC, 347 S.W.3d 231, 234–37 (Tex. 2011) (holding that

the plaintiff “must have utilized [available administrative] procedures before a takings suit [could]

be viable” and “reject[ing] taking claim because [plaintiff] did not pursue an established remedy to

recover its claimed interest in the seized property”). Here, Como never appealed her nuisance

determination. Because she “cannot attack collaterally what she cho[se] not to challenge directly,”

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This principle was implicit in our original Stewart opinion, with which the court of appeals’ opinion conflicts,

giving us jurisdiction over this interlocutory appeal. See T EX . G O V ’T C O D E § 22.225(c), (e); see also City of Dall. v.

Stewart, 54 Tex. Sup. Ct. J. 1348 (July 1, 2011), opinion withdrawn, substituted opinion at 361 S.W .3d 562 (Tex. 2012).

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Stewart, 361 S.W.3d at 580, her takings claims are barred, and the trial court correctly dismissed

them.

Accordingly, without hearing oral argument, we grant the petition for review, reverse in part

the court of appeals’ judgment, and render judgment dismissing Como’s claims. TEX . R. APP . P.

59.1, 60.2(c).

OPINION DELIVERED: August 31, 2012

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