Petition for Writ of Certiorari — Yetiv v. City of Houston
Supreme Court brief2002
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“Prise e
no. (\) ,
Q2 496 SEP 24 200%
IN THE OFFICE OF THE CLERK
is Court of the Gnited States
JACK YETIV AND ASPENWOOD APT. CORP.,
Petitioners,
v.
CITY OF HOUSTON,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE TEXAS SUPREME COURT
PETITION FOR WRIT OF CERTIORARI
JACK YETIV
350 Allen Read
Woodside, California 94062
Ph: (650) 851-2425
Fax: (650) 851-9895
In Pro Se, and
MARVIN ISGUR
TEXAS BAR No. 10433100
700 Louisiana, Suite 4600
Houston, Texas 77002
Ph: (713) 222-1480
Fax: (713) 222-1475
Attorney for Aspenwood Apt. Corp.
Date: September 24, 2002
BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS
OO pe
QUESTIONS PRESENTED FOR REVIEW
QUESTION ONE:
QUES’ ION TWO:
Is it correct—as Justices Stevens,
Breyer, Souter, and Ginsburg have
Suggested in their Bryan County
dissents—that 42 U.S.C. § 1983 is
consistent with respondeat superior
liability against cities?
Should a city be held liable under 42
U.S.C. § 1983 where:
1. Petitioners complained -about City
agents’ unconstitutional conduct
directly to City Council, and the
unconstitutional conduct continued
thereafter?
And where
2. A City policymaker—who actually
made policy, had 200 employees
under her command, and was
responsible for an $11 million annual
budget—was the individual that
personally took and also directed
unconstitutional actions against _
Petitioners?
And where
3. The City illegally implemented
policies it had to search, to withhold
repair permits from, and to demolish
low-income property?
ll
CERTIFICATE OF PARTIES TO THE PROCEEDING
BELOW AND CORPORATE DISCLOSURE
The parties to the proceedings in the First Court of
Appeals, Houston, Texas, and subsequently in the Texas
Supreme Court, include:
1.
Petitioners and Appellees, Jack Yetiv. and
Aspenwood Apt. Corp.
Respondent and Appellant, City of Houston.
Councilmember Helen Huey and Beatrice Link (a
city official) were individual defendants in the trial
court, but were granted summary judgment.
Petitioners appealed the grant of summary judgment
to these individual defendants, and the appeals court
reversed summary judgment and remanded that part
of the case for re-trial, a decision that neither Link
nor Huey challenged. Therefore, neither of these
individual defendants are parties to this appeal.
Aspenwood Apt. Corp. has no parent company and
no subsidiaries.
ill
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ...................... 1
Certificate of Parties to the Proceeding Below and
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STATEMENT OF THE CASE ......ecccccccccscssesececceceecececeecce 5. ]
A. Facts Material to Consideration of the Questions
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B. Federal Question Sought to Be Reviewed Was First
Raised in the Trial Court...............00sescesecscesssesseesoesceeeesee... 3
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REASONS FOR GRANTING THE PETITION................ 4
QUESTION ONE:
Is it correct—as Justices Stevens, Breyer, Souter, and
Ginsburg have suggested in their Bryan County dissents—
that 42 U.S.C. § 1983 is consistent with respondeat
superior liability against Cities? ..........ccecccescscssessesseseeecees +
A. The legal prerequisites are present for reexamina-
tion of Monell’s conclusion that 42 U.S.C. § 1983 does
not allow respondeat superior liability ............c.c.ccccse000e. 5
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B. Monell was wrongly decided on the basis of
statutory interpretation and legislative history. ............... 6
C. Monell has spawned an incredibly complex body
of law that is confusing and unpredictable, resulting
in inconsistent and unfair OUtCOMES. ..............:cccseeeeeeeseees 6
D. Given the ubiquity of indemnification provisions
and practices, Monell fails to limit municipal
liability, and in this case, might substantially
Sree GAR CART 6 TIIIID scsecscitccsesesesnevesisainanetcnswnarnnes 7
E. The alternative to Monell will decrease municipal
defense costs, enhance judicial consistency and
fairness, and increase judicial economy. ............::ceseeeeeee 8
F. Openly recognizing respondeat superior liability
will act as a better deterrent to governmental
AT TTT 10
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A. Should a city be held liable under 42 U.S.C. § 1983
where Petitioners complained about City agents’
unconstitutional conduct directly to City Council,
and the unconstitutional conduct continued
ERA ASL aC PTL DOES. CUNEO SPE MON 13
B. Should a city be held liable under 42 U.S.C. § 1983
where a City policymaker--who actually made policy,
had 200 employees under her command, and was
responsible for an $11 million annual budget--was the
individual that personally took and directed
unconstitutional actions against Petitioners?................. 20
C. Should a city be held liable under 42 U.S.C. § 1983
where the City illegally implemented policies it had to
ll
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search, to withhold repair permits from, and to demolish
low-income property? :;..........c.c.scoccssssssssseseseesessesesoeeesess 24
AAG acs nlesiidiniccsasinacasiapicuataoniei dana 28
vi
TABLE OF AUTHORITIES
Supreme Court Cases
Board of the County Commissioners of Bryan County v.
BPO, TIE ide FET LEFT ecinmmnanienn 5, 6, 7, 10
City of Newport v. Fact Concerts, Inc.,
SSS Uae OT CLE divtvinecrsvinesinennidtslaneiaaeuianibed 9, 16, 19
City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985)....... 4,6
City of St. Louis v. Praprotnik, 485 U.S. 112 (1988)........... 24
McMillian v. Monroe County, 520 U.S. 781 (1997).............. 7
Monell v. Department of Social Servs.,
SO Ts Ce Gr itecintasstksenidinssribiincavcinmiscnaarnintlacibaniiin 4
Monroe v. Pape, 365 U.S. 167 (1961) ...........sesccccccsssssccesseees 4
Owen vy. City of Independence, 445 U.S. 622
fF wsiscsnesasesnanconssinsadnanieniisiniadiaaananiaines 10, 15, 17, 18
Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). 6, 15, 21
Other Federal Cases
Bennett v. City of Slidell, 728 F.2d 762 (5" Cir. 1984)....... 26
Hamilton v. Rodgers, 791 F.2d 439 (5™ Cir. 1986)... 27
Webster v. City of Houston, 735 F.2d 838 (5 Cir. 1984). ..24
Federal Statutes
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Vii
OPINIONS BELOW
The unpublished clerk’s letter from the Texas Supreme
Court denying review is reproduced in the separately bound
Appendix (“App.”) included with this petition at la. The
unpublished opinion of Texas’ First Court of Appeals can be
found at 1999 WL 681939 (Aug. 27, 1999), and is
reproduced at App. 2a. A subsequent unpublished opinion of
the same court can be found at 2002 WL 89650 (January 24,
2002) and can be found at App. 66a. The trial court’s
unreported Modified Final Judgment dated Oct. 20, 1997 is
reproduced at App. 79a. :
STATEMENT OF JURISDICTION
The Texas Supreme Court denied, on June 27, 2002,
Petitioners’ request to review the appeals court’s opinion.
This appeal concerns the interpretation of a federal statute,
42 U.S.C. § 1983. This Court’s jurisdiction is invoked under
28 U.S.C. § 1257.
STATUTES INVOLVED
Title 42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.
STATEMENT OF THE CASE
A. Facts Material to Consideration of the Questions
Presented
In April, 1994, Aspenwood Apt. Corp. (“Aspenwood”)
purchased a_ half-vacant apartment complex called
Aspenwood Apartments, intending to renovate and lease the
vacant units. Despite more than a dozen written and verbal
attempts by Aspenwood’s representative, Jack Yetiv
(“Yetiv”), to get repair permits for the property, the City
refused to issue the permits. In September, 1994, Yetiv
learned that the City of Houston had recently revoked the
permits of another apartment complex in the neighborhood
(owned by the Leaths), and then demolished that complex.
Yetiv also learned that the City had attempted to settle, in
secret, the Leaths’ resulting lawsuit for $210,000.
Seeing a pattern, Yetiv hand-delivered a complaint letter
to all City of Houston councilmembers on October 5, and
appeared on the local evening news a few days later. On the
Evening News show, Yetiv alleged that Beatrice Link (a
high-level City official), and Councitmember Helen Huey
(the councilmember responsible for the district where both
the Aspenwood and Leath properties were located), were
violating his property rights by refusing to issue him building
repair permits because Councilmember Huey, for her own
political purposes, had promised the homeowners in the area
that the Aspenwood Apartments would be demolished. The
day after making his comments on the Evening News, Yetiv
appeared before Houston’s City Council (following his
written complaint to the councilmembers the week before),
and advised council (in a videotaped appearance later seen
by the jury) that city employees had illegally searched
Aspenwood and withheld its building permits.
Council took no action in response to Yetiv’s complaints.
After Yetiv’s October 10-11 TV and Council
appearances, the City escalated its unconstitutional conduct.
2
In addition to refusing to issue building permits, the City
violated Petitioners’ Fourth Amendment rights on several
occasions. For example, on October 27, 1994,
approximately 30 City inspectors and demolition contractors,
accompanied by several armed police officers, conducted an
illegal “raid” of the Aspenwood apartment complex. The
raid was made pursuant to a defective search warrant—
defective for multiple reasons, including the fact that it was
based on a false sworn affidavit. City inspectors had
testified in the affidavit that they saw, from the street, repairs
being made to buildings that cannot be seen from the street.
During the raid, City inspectors issued Yetiv 23 criminal
citations, all of which were later dismissed when none of the
four inspectors who had written the citations appeared in
court.
Several weeks after Yetiv complained to Houston’s City
Council, that Council—instead of investigating Yetiv’s
complaints of illegal permit-withholding and Fourth
Amendment violations—voted to sue Yetiv and Aspenwood.
The City never pursued its frivolous lawsuit, but Petitioners
counterclaimed under 42 U.S.C. § 1983 against the City, and
against Councilmember Huey and Beatrice Link in their
individual capacities. On January 24, 1995, pursuant to
Petitioners’ counterclaim, the court ordered the City to issue
the building permits. In November, 1995, the City again
withheld Aspenwood’s repair permits—in direct violation of
the January 24, 1995 court order. After further court action
by Yetiv, the City resumed issuing permits to Aspenwood.
After receiving the permits, Yetiv moved to Aspenwood to
supervise the repairs. Aspenwood diligently renovated all 14
apartment buildings on the property, and the work was
completed in 1999. A videotape showing the progress of the
renovation was played to the jury near the end of the trial. |
Following a jury trial, judgment was entered in favor of
Petitioners in the amount of $337,500, to compensate )
Aspenwood for lost income resulting from the permit-
withholding, plus $3,000 for violating Aspenwood’s Fourth
3
Amendment rights, plus attorneys’ fees, interest and costs.
Prior to trial, the judge had entered three progressively
more stringent injunctions against the City to prevent
repeated Fourth Amendment violations. When the City
violated the first injunction, the trial judge expanded it, and
when the City violated the second injunction, the trial judge
held the City in contempt, levied monetary sanctions against
the City—and entered a third, even broader injunction. That
injunction was made permanent in the final judgment, as
were the sanctions levied by the trial judge for the City’s
violation of his injunctions.
B. Federal Question Sought to Be Reviewed Was
-First Raised in the Trial Court
The federal question was first raised in the trial court,
where Plaintiffs filed this 42 U.S.C. § 1983 counterclaim.
Section 1983 was, in large part, the basis for the City’s
appeal to the Texas First Court of Appeals, and
subsequently, Petitioners’ Petition for Review to the Texas
Supreme Court. Section 1983 is extensively dealt with in the
two appeals court opinions (App. 2a and 66a).
i. Procedural History
At the conclusion of the trial, the judge entered a final
judgment which: (1) granted Petitioners substantial monetary
damages for the City’s violation of Petitioners’ F ourth, Fifth
and Fourteenth Amendment rights, (2) declared
unconstitutional certain portions of a City of Houston
ordinance, and (3) entered a permanent injunction forbidding
the City from conducting inspections of Yetiv’s three
apartment complexes, based on a finding by the trial judge
(as well as the jury) that the City had repeatedly conducted
such inspections in violation of Petitioners’ Fourth
Amendment rights. The trial judge also granted summary
judgment to the individual defendants.
4
The City appealed the above judgment, while Yetiv and
Aspenwood appealed the grant of summary judgment to
Link and Huey. On August 27, 1999, the Texas First Court
of Appeals issued an unpublished opinion which reversed the
judgment and rendered in favor of the City. The panel also
reversed Link and Huey’s summary judgment, remanding
that portion of the case to the trial court. Huey and Link did
not challenge the appeal court’s reversal of their summary
judgment, rendering that part of the appeal final. Petitioners
requested en banc consideration, which was denied, but a
Supplemental Opinion was issued on January 24, 2002.
Petitioners petitioned for review by the Texas Supreme
Court, which petition was denied on June 27, 2002.
REASONS FOR GRANTING THE PETITION
QUESTION ONE
Is it correct—as Justices Stevens, Breyer, Souter, and
Ginsburg have suggested in their Bryan County
dissents—that 42 U.S.C. § 1983 is consistent with
respondeat superior liability against cities?
In 1978, this Court overruled Monroe v. Pape, 365 U.S.
167 (1961), and held that municipalities are “persons,” and
therefore can be sued under 42 U.S.C. § 1983. Monell v.
Department of Social Servs., 436 U.S. 658 (1978). This
Court also concluded in Monell that municipalities could not
be sued under a respondeat superior theory.
Over the past two decades, at least four Justices of this
Court have called for a reconsideration of Monell. Justice
Stevens has argued on several occasions that Monell was
wrongly decided, and that municipalities should be liable for
the conduct of their agents under a respondeat superior
theory. City of Oklahoma City v. Tuttle, 471 U.S. 808, 842
(1985) (Stevens, J., dissenting, stating that “in my opinion,
the Court in Monell should simply have held that
,
iia
5
municipalities are liable for the unconstitutional activities of
their agents that are performed in the course of their official
duties.”) In 1997, Justices Souter, Breyer and Ginsburg, in
two separate dissents, joined Justice Stevens in calling for a
reexamination of Monell. Board of the County
Commissioners of Bryan County v. Brown, 520 U.S. 397
(1997).
The case sub judice presents an ideal vehicle to answer
the call of Justices Stevens, Breyer, Souter and Ginsburg to
reexamine Monell because it compellingly demonstrates the
shortcomings of Monell that were discussed in the Bryan
County dissents. Monell should be reexamined for the
following reasons:
A. The legal prerequisites are present for
reexamination of Monell’s conclusion that 42 U.S.C. §
1983 does not allow respondeat superior liability.
Justice Breyer’s succinct argument on this topic best
states Petitioners’ case:
I believe that the legal prerequisites for
reexamination of an interpretation of an important
statute are present here. The soundness of the
original principle is doubtful. The original principle
has generated a body of interpretive law that is so
complex that the law has become difficult to apply.
Factual and legal changes have divorced the law from
the distinction’s apparent original purposes. And
there may be only a handful of individuals or groups
that have significantly relied upon perpetuation of the
original distinction. If all this is so, later law has
made the original distinction not simply wrong but
obsolete and a potential source of confusion.
(citations omitted).
Bryan County, 520 U.S. at 431.
\
YX
6
B. Monell was wrongly decided on the basis of
statutory interpretation and legislative history.
Justice Stevens has explained why § 1983 is consistent
with respondeat superior liability. Tuttle, 471 U.S. at 836, n.
8, (Stevens, J., dissenting); Pembaur v. City of Cincinnati,
475 U.S. 469, 489-490 (1986) (Stevens, J., concurring in part
and concurring in judgment). Justice Stevens’ reasoning on
this issue has been cited with approval by Justices Breyer,
Stevens and Ginsburg in their Bryan County dissent. Bryan
County, 520 U.S. at 431-432. As noted by these three
Justices, “it is difficult to find Section 1983’s words ‘[e]very
person’ inconsistent with respondeat superior liability.” Id.
at 432. Since Section 1983 requires that the wrongdoer
either “subject” or “cause” another person “to be subjected”
to a “deprivation” of a right, and since municipalities can
only commit wrongs via the action of human beings, the law
of agency suggests that municipalities should be liable for
acts their employees take within the scope of their
employment. Jd. In several circumstances, Justice Breyer
noted, federal courts have interpreted the word “person” or
equivalent in other statutes as authorizing vicarious liability.
Id. at 432-433 (citing AT&T. v. Winback .and Conserve
Program, Inc., 42 F.3d 1421 (3d Cir. 1994), cert. denied,
514 U.S. 1103 (1995) (Lanham Act); American Soc. of
Mechanical Eng’rs, Inc. v. Hydrolevel Corp., 456 U.S. 556
(1982) (Sherman Act); United States v. A & P Trucking Co.,
358 U.S. 121, 124-125 (1958) (criminal statute). See also
Tuttle, 471 U.S. at 835 (Stevens, J., dissenting).
... Monell has spawned an incredibly complex body
of law that is confusing and unpredictable, resulting in
inconsistent and unfair outcomes.
To avoid respondeat superior liability, this Court and
others have had to “spin ever finer distinctions as we try to
apply Monell’s basic distinction between liability that rests
upon policy and liability that is vicarious.” Bryan County,
7
520 U.S. at 430 (Breyer, J., dissenting). This “has produced
a body of law that is neither readily understandable nor easy
to apply,” Jd. at 433 (Breyer, J., dissenting), with legal
outcomes that have often been inconsistent. For example, in
Bryan County, the county sheriff was a final policymaker,
but in another decision issued by this Court that year, the
county sheriff was held not to be a county policymaker.
McMillian v. Monroe County, 520 U.S. 781 (1997).
Justice Breyer has noted that “a basic legal principle that
requires so many such distinctions to maintain its legal life
may not deserve such longevity.” Bryan County, 520 USS. at
435 (Breyer, J., dissenting). Specific examples of these
confusing distinctions appear below, in the discussion of the
appeal court’s misinterpretation of this Court’s § 1983
decisions.
D. Given the ubiquity of indemnification provisions
and practices, Monell fails to limit municipal liability,
and in this case, might substantially increase the City’s
liability.
In Bryan County, Justices Breyer, Stevens and Ginsburg
noted that many entities indemnify their employees, and
called for briefing (in the proper case) on how
indemnification might impact respondeat superior liability
under § 1983. Bryan County, 520 U.S. at 436-37 (Breyer, J.,
dissenting). This case is an ideal vehicle for briefing the
indemnification issue because (1) the Houston City Code
contains a detailed indemnification provision (App. 88a)!
that covers both of the individual defendants in this case, and
(2) the appeals court remanded to the trial court Petitioners’
' This document was not part of the trial record because indemnification
was not relevant at trial. Petitioners respectfully request that this
Honorable Court take judicial notice of this document. The authenticity
of this certified excerpt of the City of Houston Code is obviously not in
dispute, and it is relevant to the argument being made by Petitioners
herein. Thus it is appropriate for this Court to take judicial notice of this
document for the purposes of this appeal.
8
claims against the individual defendants. Therefore,
Petitioners will re-try against the individual defendants
essentially the same case they already won against the City.
If Petitioners win against the individuals, the City of
Houston will pay the verdict because both individuals are
indemnified under the City Code, and thus, the City of
Houston’s success in having the first verdict reversed may be
worse than a pyrrhic victory. At retrial, the court could
award not only the same actual damages but also impose
punitive damages against the individuals. This is not simply
a theoretical concern; while the jury was deliberating in the
first trial, they submitted a question to the trial judge as to
whether punitive damages could be assessed against the
City.” In addition, even the appeals court opined that the
conduct that was alleged against the individual defendants—
and which the jury obviously found persuasive—was such
that no reasonable city official could have thought it
acceptable behavior (App. 45a and 62a). That holding, and
the jury’s question about the availability of punitive
- damages, raises the very real specter that the City’s exposure
at the second trial could be substantially greater than it was
at the first trial.
E. The alternative to Monell will decrease municipal
defense costs, enhance judicial consistency and fairness,
and increase judicial economy.
The “no respondeat superior liability” conclusion also
results in duplication of legal fees. For example, in addition
to its own legal fees, the City paid two outside law firms to
represent the individual defendants in this case. This ;
additional—and substantial—cost to cities would largely be |
eliminated if respondeat superior liability were available.
Under that circumstance, most plaintiffs would simply sue
? The answer, of course, was “no,” pursuant to City of Newport v. Fact
Concerts, Inc., 453 U.S. 247 (1981).
|
9
the municipality, as would be the normal practice if one were
suing a private-sector defendant. This would (1) simplify the
lawsuit greatly, enhancing judicial economy, (2) enhance
fairness by making outcomes more consistent, (3) lower
legal fees significantly for both sides, which fees a city will
likely pay if it loses, (4) shorten the time from filing of a
lawsuit to its resolution, and (5) decrease pre- and post-
judgment interest costs to municipalities.
These cost savings would largely compensate for any
additional exposure resulting from the availability of
respondeat superior liability. That is because, as noted
above, respondeat superior liability is effectively available
right now against municipalities via indemnification.°
However, the circuitous route (via indemnification) by which
cities now respond in damages markedly increases
municipalities’ transactional costs, and it often delays (and
sometimes prevents) compensation to victims of
unconstitutional government conduct. In essence, money
that could go to compensate victims of governmental
misconduct is wasted on transactional costs that benefit no
one.
Municipalities may argue that recognizing respondeat
superior liability will increase their liability, which would
deplete public coffers. That concern is minimized by the
existence of indemnification and by the cost savings
discussed above. Moreover, that concern is minimized by
three major advantages that governmental defendants would
continue to have even if respondeat superior liability were
recognized. The first advantage is that governments are not
subject to punitive damages under § 1983. City of Newport
v. Fact Concerts, Inc., 453 U.S. 247 (1981). The second
advantage is that individual defendants would continue to
retain their good-faith immunity even if respondeat superior
> In addition, there is already respondeat superior liability if the
municipal wrongdoer is a policymaker under Section 1983.
10
liability were available. In other words, a municipality
would only be liable on a respondeat superior theory if—as
is the case today—a plaintiff could overcome the individual
defendant’s good-faith-immunity defense.
The third advantage which significantly limits municipal
liability is that cities are not liable for negligent—or even
grossly negligent—conduct. A municipality is liable under §
1983 only if the plaintiff shows that the policymaker and/or
municipality exhibited “deliberate indifference,” which has
been understood to mean “intent”:
Deliberate indifference is thus treated, as it is
elsewhere in the law, as tantamount to intent, so that
inaction by a policymaker deliberately indifferent to a
suvstantial risk of harm is equivalent to the
intentional action that setting policy presupposes.
Compare Pembaur, supra at 483, 106 S.Ct. at 1300
(plurality opinion of BRENNAN, J.)(“deliberate
choice” by policymaker) and Oklahoma City vy.
Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85
L.Ed.2d 791 (1985) (plurality § opinion of
REHNQUIST, J.) (‘’policy’ generally implies a
course of action consciously chosen’) with Canton,
supra, at 389, 109 S.Ct. at 1205 (“Only where a
municipality’s failure to train its employees.
.evidences a ‘deliberate indifference’ to the rights of
its inhabitants can . . . a shortcoming be ... city
‘policy or custom’ ... actionable under §1983”’).
Bryan County, 520 U.S. at 419-420 (Souter, J., dissenting).
These three advantages collectively represent a much
more meaningful-limitation on Section 1983 liability than the
“absence” of respondeat superior—which, as noted above, is
not really “absent” much of the time.
F. Openly recognizing respondeat superior liability —
will act as a better deterrent to governmental
unconstitutional conduct.
FE UNTO AERTS cA ie MOLISE FAAS a te ee
11
In Owen v. City of Independence, this Court stated that §
1983 “was intended not only to provide compensation to the
victims of past abuses, but to serve as a deterrent against
future constitutional deprivations, as well.” 445 U.S. 622,
651-52 (1980). Our jurisprudence has traditionally
recognized respondeat superior liability largely because of
the belief that by holding the employer liable, we increase
the likelihood that the employer will “fix the problem.” This
should apply no less to municipal corporations than it does to
business corporations, but municipalities that are held “not
liable”—as was the City of Houston in this case because of
the fiction of “no respondeat superior liability”—are sent the
wrong signal. That wrong signal, of course, is that some
“rogue employees” violated the constitution, but that the city
itself is “fault-free.” io
In many cases, that conclusion itself is also a fiction. As
is compellingly demonstrated by this case, constitutional
misconduct is often not misconduct of “rogue employees,”
but rather, is a systemic problem. In this case, the systemic
nature of the constitutional misconduct was shown by the
following: (1) the “rogue employees” were a councilmember
and a city policymaker’ responsible for 200 employees and
an $11 million budget, (2) the City withheld permits in direct
violation of a court order, (3) the City violated Petitioners’
Fourth Amendment rights on several occasions, including
using a perjured affidavit to obtain a search warrant, the
scope of which was far exceeded on the day of the search,
(4) multiple City agents violated two progressively more
stringent injunctions, which led the trial judge to hold the
City in contempt and levy monetary sanctions against the
City, (5) Petitioners complained to the City of Houston’s
Council on three occasions, the only result of which was that
* Whether Bea Link was a policymaker is disputed by the parties. The
appeals court concluded she was not. On p. 20-24 of this Petition,
Petitioners explain why Bea Link was a policymaker.
12
the Council voted to sue Petitioners, and (6) just before
Yetiv’ last appearance in front of Houston’s City Council,
that same council had voted to pay $210,000 to settle the
Leath lawsuit.
One can hardly deem the above series of acts by dozens
of City employees, lasting for several years, to be
misconduct of “rogue employees.” Furthermore, it was
misconduct the Houston City Council was fully aware of—
misconduct for which that Council had just voted to pay
substantial monies to settle similar claims. Despite that,
Council ignored Petitioners’ repeated written and oral
complaints and thus encouraged the same conduct to recur.
Yet, despite all of these facts, the appeals court, basing its
opinion largely on the “no respondeat superior” holding of
Monell, held that there was no evidence that the City itself
was liable. That conclusion sent the wrong message to a
City that was obviously responsible for the constitutional
misconduct that Petitioners suffered here. And that wrong
message removed any incentive for the City to fix the
systemic problem.°
QUESTION TWO
Should a city be held liable under 42 U.S.C. § 1983
where:
A. Petitioners complained about City agents’
unconstitutional conduct directly to City Council, and the
unconstitutional conduct continued thereafter?
And where
B. A City policymaker—who actually made policy, had
200 employees under her command, and was responsible
* Indeed, since the Texas Supreme Court denied review of this case, City
agents have again begun harassing Petitioners, conducting illegal
searches, threatening Yetiv’s apartment staff with incarceration, and
writing additional meritless criminal citations. Petitioners are now in the
process of preparing yet another lawsuit against the City of Houston, a
police officer and two of its building inspectors.
13
for an $11 million annual budget—was the individual
that personally took and also directed unconstitutional
actions against Petitioners?
And where
C. The City illegally implemented policies it had to
search, to withhold repair permits from, and to demolish
low-income property?
Even if Monell is not to be revisited, several issues
regarding § 1983 pathways to municipal liability need to be
clarified in order to render this body of law more intelligible,
and hence, more predictable and fairer.
Monell and its progeny have held that there are
essentially three pathways to attach liability to cities under §
1983, termed herein the City Council, the Policymaker, and
the Custom/Practice pathways. This case is an ideal one to
address the confusion arising from Monell and its progeny
because here, all three pathways for attaching liability were
proved at trial®. Despite that, the appeals court reversed
based on its confusion as to what § 1983 requires a plaintiff
to prove. The ensuing discussion demonstrates the need for
this Court to clarify the pathways by which § 1983 liability
may attach to municipalities.
A. Should a city be held liable under 42 U.S.C. § 1983
where Petitioners complained about City agents’
unconstitutional conduct directly to City Council, and the
unconstitutional conduct continued thereafter?
Petitioners initially complained to City Council by hand-
delivering a complaint to all councilmembers on October 5,
1994. A few days later, Yetiv appeared on the local Evening
News and alleged that Link and Huey were conducting
° The question of whether Link was a Policymaker was decided by the
trial judge as a mixed question of law and fact. The trial judge,
considering all evidence in the case, including any inferences drawn from
the jury verdict, held that Beatrice Link was a policymaker.
14
illegal searches and withholding repair permits. The next
day, Yetiv appeared in person before Houston’s City
Council, and answered several councilmembers’ questions
about his complaints. Two weeks later, the Houston
Chronicle reported that the City of Houston had attempted to
settle in secret the Leaths’ lawsuit, which claimed that the
City had illegally revoked their permits and demolished their
apartments. After the story broke, the City Legal
Department decided to follow procedure’ and submit the
proposed $210,000 settlement payment to Houston’s City
Council, which payment Council voted to approve.
Even without Yetiv’s complaints and without the Leath
settlement payment, Helen Huey’s demolition drive in her
district was well known to any councilmember who was
awake. Huey was not shy about it. Indeed, she made it the
centerpiece of a campaign photo, where she is shown leaning
on a big sledgehammer. An article largely focusing on
Huey’s efforts to demolish many low-income apartment
complexes in her district was entitled “Hammerin’ Helen.”
In violation of the City Charter, which allows
councilmembers to exercise only legislative power, Huey
improperly controlled the City’s permit-issuance machinery.
For example, a print-out from the City’s permit-issuance
computer stated “No permits without CMHH or JHC
appreval.” CMHH was an acronym for CouncilMember
Helen Huey. Many internal Huey office memos had entries,
some in Huey’s own handwriting, pertainirig to the
revocation of valid permits of various apartment complexes
in Huey’s district, and of the “problem” which existed when
apartments which were targeted by Huey for demolition—
like the Leaths’ apartments and Aspenwood—had valid
permits. In the Leath situation, the City “solved” that
“problem” by revoking the permits and then demolishing the
apartment complex.
’ Traditionally, all legal settlements exceeding $5,000 must be approved
by City Council.
15
It is unfathomable that City councilmembers were
unaware of the extensive print and television publicity which
surrounded Huey’s efforts to “clean up” her district.
Despite this evidence, the appeals court held that
Petitioners had not proven the City Council pathway
because that pathway is available only if “City Council (a)
passed an ordinance or resolution that City employees
followed in improperly withholding permits from Yetiv and
AAC® and illegally searching the AAC apartments or (b)
expressly ratified these employees’ improper actions.” App.
lla.
The appeals court is confused regarding the City
Council pathway. This Court has held repeatedly that a
decision—not a facially unconstitutional decision—by a
City’s legislative body attaches liability to a City:
With this understanding, it is plain that municipal
liability may be imposed for a single decision by
municipal policymakers under _ appropriate
circumstances. No one has ever doubted, for
instance, that a municipality may be liable under §
1983 for a single decision by its properly constituted
legislative body—whether or not that body had taken
similar action in the past or intended to do so in the
future—because even a single decision by such a
body unquestionably constitutes an act of
government policy.
Pembaur, supra, 475 U.S. at 480 (1986) (emphasis added),
citing Owen v. City of Independence, 445 U.S. 622 (1980)
and City of Newport v. Fact Concerts, Inc., 453 U.S. 247
(1981).
The appeals court further stated that the City was not
liable because “Council voted to sue AAC for repairing
without a permit; it did not vote to withhold permits or to
* AAC is an acronym for Aspenwood Apt. Corp., the owner of the
Aspenwood Apartments.
16
demolish or search AAC’s or anyone’s buildings. Moreover,
not investigating Yetiv’s claims is not an express ratification
of anything.” (App. 14a)
This statement constitutes error in three ways:
First, by concluding that “Council voted to sue AAC for
repairing without a permit,” the panel is accepting the City’s
version of the facts—a version that the jury did not believe.
Giving deference to the verdict, the panel should have
inferred that Council voted to sue Petitioners in order to
‘protect one of their own,” and please a_ fellow
councilmember whose unconstitutional conduct was a means
to further her own political agenda. That the City never
pursued its lawsuit, and that the trial judge—as a result of
Petitioners’ counterclaim—ordered the City to provide
permits to Petitioners, might explain why the jury did not
believe the version of the facts relied on by the appeals court.
Second, and more importantly to this appeal, by stating
that “Council did not vote to withhold permits or to demolish
or search AAC’s or anyone’s buildings,” the appeals court
appears to have concluded that under § 1983, a City
Council’s action must be facially unconstitutional in order to
attach liability. That the appeals court is confused can best
be seen from Owen’ and Fact Concerts'® themselves. For
* Owen, the police chief in Independence, MO, was suspected of stealing
City property, diverting narcotics and money held by the police,
manipulating traffic tickets, and causing the “unusual release of felons.”
Owen, 445 U.S. at 628. A councilmember reviewed “voluminous
reports” describing the investigation of these charges and reported to
council. There was no evidence that any councilmember nor other city
_ Official bore any ill will toward the police chief. Council voted to request
that the City manager “immediately take direct and appropriate action,
permitted under the Code, against such persons as are shown by the
investigation to have been involved.”. Jd. at 629. The City manager
fired the police chief the next day.
'° Fact Concerts, Inc., obtained a permit from the City of Newport to
present concerts. Shortly before one concert, the group “Blood, Sweat
and Tears” was hired by Fact Concerts as a replacement for a previously
eet a ae ee
17
example, this is how this Court explained why the City of
Newport Council voted to cancel Fact Concerts, Inc.’s
license to perform:
Council then voted to cancel the contract because
respondent had not “lived up to all phases of the
agreement. ”
Id., at 252.
There was nothing facially unconstitutional about the
City of Newport’s Council vote to cancel a contract, yet this
Court held that the Council’s vote was sufficient to attach
liability to the City.
Owen is yet another case from this Court that shows that
a Council’s action need not be facially unconstitutional in
order to attach liability to a city:
At the close of his statement, [Councilmember]
Roberts moved that the investigative reports be
released to the news media and turned over to the
prosecutor for presentation to the grand jury, and that
the City manager “take all direct and appropriate
action” against those persons “involved in illegal,
wrongful, or gross inefficient activities brought out in
the investigative reports.” After some discussion, the
City council passed Roberts’ motion with no dissents
and one abstention.
Owen, 445 U.S. at 628-29 (emphasis added).
As in Fact Concerts, Council’s vote in Owen was
facially constitutional—Council simply voted to advise the
city manager to take “direct and appropriate” action. Council
engaged performer. Fact Concerts, 453 U.S. at 252. The City was
concerned because it had experienced crowd disturbances at previous
rock concerts, and the City canceled Fact Concerts’ license to perform.
Fact Concerts obtained a court order enjoining the City from interfering
with the performance of the concerts, which were then held as planned,
without incident. Fact Concerts later obtained a §1983 jury verdict that
its constitutional rights had been violated.
18
didn’t even vote to fire Owen (which itself could have been
facially constitutional). When the jury later decided that
Owen’s discharge was unconstitutional (on lack of due
process grounds), the Council’s vote to take “direct and
appropriate” action simply attached liability for the City
manager’s subsequent unconstitutional action.
The appeals court’s standard of refusing to attach
liability based on council inaction is untenable. The appeals
court held that for liability to attach via the City Council
pathway either council’s action must be facially
unconstitutional or it must ratify employees’ previous
facially unconstitutional behavior. This holding is
inconsistent with this Court’s precedent, and furthermore, it
is untenable because most conduct becomes “facially
unconstitutional” only after the facts are resolved by a fact-
finder. For example, in Fact Concerts, the City Council
canceled the contract because it contended that Fact
Concerts, Inc., had not “lived up to all phases of the
agreement.” In other words, the Council canceled a contract
because it believed that the other party to the contract had
breached it. There is certainly nothing facially
unconstitutional about canceling a contract that has been
breached by the other party. But when the jury concluded
that the cancellation was actually based on impermissible
First Amendment grounds, the City council’s facially
innocent action attached liability to that city.
Similarly, in Owen, there was nothing facially
unconstitutional about the city council’s vote requesting that
the City manager “immediately take direct and appropriate
action, permitted under the Code, against such persons as are
shown by the investigation to have been involved.” Owen,
445 U.S. at 629. Indeed, such a vote—at least on its face—
shows civic responsibility by the councilmembers. Yet when
the jury concluded that Owen’s right to due process had been
violated, Council’s vote—even though it was not facially
unconstitutional—attached liability to the City.
The same applies here. If anything, the facts here argue
Se ae SP ere? seen
19
for even clearer liability against the City of Houston, for
these reasons:
e In Owen, Chief Owen was accused of very serious
felonies, whereas here, Petitioners won, indicating that the
jury found that Aspenwood and Yetiv had done nothing
wrong. No such inferences existed in favor of Owen, yet he
won his §1983 argument.
e In Owen, Council’s vote did not direct the manager to
take any adverse action against Owen—but rather, to take
action against “persons involved in illegal, wrongful
“activities.” Here, Council’s vote to sue Petitioners implies
that council concluded that City agents had done nothing
wrong—and that Yetiv and Aspenwood had. This is much
more of an endorsement of City agents’ subsequent
unconstitutional conduct than is “taking appropriate action”
or “canceling a contract.” Indeed, the appeals court should
have concluded that Houston City Council’s decision to sue
Petitioners not only ratified previous unconstitutional
conduct but also encouraged subsequent unconstitutional
conduct by City agents.
e In neither Owen nor Facts Concerts is there any
Suggestion that a similar situation had previously occurred.
‘Here, prior to voting to sue Yetiv and Aspenwood,
Houston’s City Council had just voted to pay the Leaths
$210,000 to settle nearly identical claims.
Third, the appeals court is mistaken in its assertion that
Council’s “not investigating Yetiv’s claims is not an express
ratification of anything.” (App. 14a). This statement is
incorrect, as explained by this Court in Fact Concerts :
Without attempting to investigate the nature of the
group’s music or the representations made by
respondent [Fact Concerts], the Council voted to
~ cancel the license for both days unless “Blood, Sweat
and Tears” were removed from the program.
Fact Concerts, 453 U.S. at 251 (emphasis added).
; 20
Thus, this Court held that “failure to investigate” is
important in the analysis of whether § 1983 liability should
attach via the City Council pathway. This is logical because
if a council is going to be the citizen’s last resort, as it is in
most cities, that avenue of relief would be meaningless if a
city’s council could be told of multiple constitutional
violations and then simply ignore them—with impunity.
Indeed, if a city council’s inaction cannot attach liability to a
city, then the incentive will always be for a city’s council to
do nothing, because according to the appeals court, if a city’s
council does nothing, that fully insulates it from liability."
B. Should a city be held liable under 42 U.S.C. § 1983
where a City policymaker—who actually made policy,
had 200 employees under her command, and was
responsible for an $11 million annual budget—was_ the
individual that personally took and also directed
unconstitutional actions against Petitioners?
Although liability most clearly attaches to cities via
action (or inaction) of their legislative body, misconduct by a
Policymaker can also attach liability to a municipality. This
Court has recognized that cities delegate most municipal
“policymaking”:
Like other governmental entities, municipalities often
spread policymaking authority among various
officers and official bodies. As a result, particular
officers may have authority to establish binding
county policy respecting particular matters and to
adjust that policy for the county in changing
circumstances. To hold a municipality liable for
'' It should be emphasized that unless a council’s action is itself
unconstitutional (which, realistically, it almost never is), a council’s vote
(or inaction) only attaches liability to a city—it does not create the
liability. The plaintiff must still prove the underlying unconstitutional
conduct in order to prevail. What council’s awareness provides is a
means to overcome the § 1983 “no respondeat superior liability”
limitation.
ee
Ee OO Oe ee ee ON Te ee See Le ee
21
actions ordered by such officers exercising their
policymaking authority is no more an application of
the theory of respondeat superior than was holding
the municipalities liable for the decisions of the City
councils in Owen and Newport.
Pembaur, 475 U.S. at 483.'”
The appeals court cites Pembaur for the proposition that
one must make final policy in order to be a policymaker
(App. 15a), but the facts in Pembaur suggest that one need
not make policy at all to be a policymaker under §1983:
In ordering the Deputy Sheriffs to enter petitioner's
clinic the County Prosecutor was acting as the final
decisionmaker for the county, and the county may
therefore be held liable under § 1983.
Pembaur, 475 U.S. at 484-85 (emphasis added).
It is notable that although this quote refers to the “County
Prosecutor,” it was actually Assistant Prosecutor Whalen that
was held to be a policymaker—even though as Assistant
Prosecutor, he could not make any policy under Ohio law.
Link testified not only that she was a final
decisionmaker, which was sufficient under the facts of
Pembaur, but also that she established operating procedures
and actually made policy. No such testimony can be found in
the above cases.
Substantial summary judgment and trial evidence
showed that Link was a policymaker:
First, in her summary judgment affidavit, Link testified
that she derived her authority from the Comprehensive
? In Pembaur, the assistant county prosecutor recommended that police
forcibly enter a doctor’s clinic to serve capiases on two witnesses they
believed were there. Jd. at 483. This Court held the assistant prosecutor
to be a policymaker even though the County argued that “the prosecutor
lacked authority to establish municipal policy respecting law
enforcement practices.” Jd. at 484.
22
Urban Rehabilitation and Building Standards (“CURB”)
ordinance, and that she had overseen enforcement of CURB
since the day it was passed on Dec. 8, 1993. Link further
testified that she managed an $11 million annual budget and
supervised over 200 employees, and that during her 20 years
of employment with the City,
I have studied and reviewed City Ordinances and
State laws extensively. I have also studied
ordinances regulating substandard and dangerous
buildings of other Cities, recommended changes to
the City and Local Government and provided expert
testimony before State legislative hearings and
proposed changes to State Laws.
To meet the division’s responsibilities, the Assistant
Director [Link] is required to establish operating
procedures for enforcing City Codes. For example,
the Assistant Director has the authority to establish
procedures for inspection and abatement work
performed by the City. The exercise of judgment and
discretion with respect to these policies and
procedures could have significant impact on the
health and safety of the public.
(emphasis added). In summary, Link testified under oath
that she used her discretion and judgment to establish
“policies and procedures” in the very areas of the City’s
business that were challenged in this lawsuit. One could
scarcely imagine a more compelling statement of
policymaking.
Second, at trial, Link testified that she has been delegated
power by the Building Official to “determine what type of
action should be taken to enforce City Codes.” Link further
testified that she exercised this power in Aspenwood’s case
by determining (1) whether she would grant extensions to
Aspenwood, (2) whether she would require that Aspenwood
post a $2200 bond, (3) whether she would enter an
agreement with Aspenwood regarding repairs, and (4)
whether she would give—or withhold—permits from
23
Aspenwood. It is undisputed that Link withheld
Aspenwood’s permits.
Third, the following trial testimony also shows that Link
made policy:
QUESTION: [asking Link about paragraph 5 in her
affidavit] You said to meet the division’s responsibilities,
assistant director [Link] is required to establish operating
procedures for enforcing City Codes. Have you, in fact,
established some of those operating procedures?
LINK’S ANSWER: Fes, I have.
QUESTION: Have you done that independently or is it
done within a committee environment or how does it work?
ANSWER: It’s done with the consultation of the
managers within the division.
QUESTION: But it’s your call in the final analysis?
ANSWER: Yes.
The following also shows that Link made policy:
QUESTION: Ma’am, would you flip to the third page
and look at point [affidavit paragraph] No. 6? You have
stated here inspection personnel, not the assistant director,
are responsible for determining whether a violation exists.
Issuing notice by certified mail to owners. Is that one of the
procedures you have established that whenever violations
are found, a notice is sent to the owner by certified mail?
LINK’S ANSWER: Fes.
QUESTION: And you have trained your staff to do it
that way?
ANSWER: Yes.
Link’s own sworn affidavit and her trial testimony (both
of which the trial judge considered in ruling on the
policymaker issue), show that Link had power under CURB
to be both a policymaker and a final decisionmaker, and that,
in fact, she made policies and also made the decision to
withhold permits and unconstitutionally search Aspenwood.
Finally, a post-Pembaur decision of this Court explained
24
that a “policymaker” is someone not subject to effective
review procedures. City of St. Louis v. Praprotnik, 485 U.S.
112, 145 (1988) (Brennan, J., concurring in the judgment).
As Link herself stated in a letter to Yetiv, there was no
effective means within the City of Houston to review her
decisions. In her Aug. 22, 1994, letter to Yetiv, in response
to Yetiv’s question on how her decisions could be appealed,
Link stated:
- If there is a disagreement regarding a default in the
future or progress of the job, the disagreement will be
resolved by City inspectors. The mechanism to
appeal the City’s [Link’s] decisions regarding the
progress of the job is District Court. ~
Although Link failed to disclose that her decisions could
be appealed to City Council—or anywhere else, other than
District Court—Petitioners appealed to City Council on three
occasions, but all that resulted from that was that Petitioners
got sued by the City.
Obviously, Link was correct when she said that the only
way to appeal her decision was by going to court.
C. Should a city be held liable under 42 U.S.C. § 1983
where the City illegally implemented policies it had to
search, to withhold repair permits iain and to demolish
low-income property?
Whether there is a § 1983 custom or practice is a jury
question. Webster v. City of Houston, 735 F.2d 838, 842 (5"
Cir. 1984), Bennett v. City of Slidell, 728 F.2d 762, 767-68
(5™ Cir. 1984). Despite that, the appeals court disregarded
substantial evidence in the record showing a custom and
practice of withholding permits, favoring demolition and
conducting improper searches. The appeals court also
concluded that repeated unconstitutional actions taken
against Petitioners by dozens of City agents over several
years cannot be used to show custom and practice. In other
words, the appeals court erroneously concluded that only
sii. iti
25
actions against others (but not actions taken against the
plaintiffs in a specific case) can be used to prove policy and
custom. This Court has never suggested that a city gets a
“free pass” for repeated unconstitutional actions it takes
against the plaintiffs in a certain case, nor would this
requirement make any sense. The extensive, repeated, and -
long-lasting constitutional misconduct aimed at Petitioners in
this case should certainly be considered in determining
whether a policy or custom existed. Some of the evidence
that supports the jury’s conclusion in the instant case that
there was a custom or practice to withhold permits, demolish
and to conduct illegal searches includes:
e The fact that the only way that Petitioners were able
to get the building permits was by suing the City and
obtaining a court order to force the City to issue permits.
e Withholding permits a second time, even in violation
of a court order compelling the City to issue them.
e Lying by City inspectors in a sworn affidavit in order
to get a faulty search warrant, the scope of which was far
exceeded when 30 City inspectors, demolition contractors
and armed police officers executed it.
e The multiple improper inspections made, leading to
three progressively more stringent injunctions and a finding
of contempt and assessment of sanctions against the City.
e The statement by one of the City’s own inspectors
(Inspector Watson) that the City’s tactics against Petitioners
constituted “‘Gestapo tactics.”
e The 25 citations written to Yetiv by four different
City inspectors, all of which were dismissed when none of
the inspectors showed up to the three different court dates.
e Link’s invention of a complaint that Aspenwood was
dumping asbestos-containing materials in the public street,
an allegation that was proven false by the City’s own
asbestos inspector.
26
e The vote by City council to sue Petitioners—instead
of making sure that Petitioners got the building permits they
had been trying to get for six months.
e The fact that City council itself voted to pay the
Leaths $210,000 to settle their § 1983 lawsuit on nearly
identical facts.
In addition to the above, Petitioners offered into evidence
a Feb. 17, 1993, memorandum prepared by the Director of
the City of Houston Planning and Development Department.
This memo was addressed to the Mayor and “All City
Councilmembers” and described a survey of 587 square
miles which identified 11,710 buildings which were
allegedly “hazardous.” The concluding paragraph stated:
“We notified the Legal Department in December of this
effort and will now move forward aggressively to identify
owners and push for demolition.”'°
Despite the above, the appeals court concluded “the only
evidence of any custom or usage of demolishing or searching
low-income housing or withholding permits involves the
Aspenwood Apartments and-the Leaths’s buildings.” (App.
24a). The panel acknowledged that the City withheld permits
from the Leaths and from Petitioners and that both the Leath
and Yetiv/Aspenwood evidence of custom and practice were
known to council (/d.). Even if the Leath/Yetiv/Aspenwood
evidence were the only evidence proving these customs and
practices—which it was not—it should have been enough
because of the repeated nature and egregiousness of the
'? Although Petitioners offered this document, the trial judge did not
admit it. Petitioners preserved error at trial via a bill of exceptions, but
did not raise this issue in their appeal (dealing with the Huey/Link
summary judgment) because they were satisfied with the jury verdict.
Once the appeals court reversed, Petitioners asked the court to consider
the evidence in their bill of exceptions, but the court refused to do so.
Petitioners raise this not as a separate appeal issue, but so that if this
Petition is granted, this Court will consider the evidence in their bill of
exceptions.
27
violations. Bennett v. City of Slidell, 728 F.2d 762, 767-68
(5" Cir. 1984):
Where the violations are flagrant or severe, the fact
finder will likely require a shorter pattern of the
conduct, to be satisfied that diligent governing body
members would necessarily have learned of the
objectionable practice and acceded to its
continuation. Knowledge of a continuing practice of
city employees may be attributed to the governing
body in one of two ways. Actual knowledge may be
shown by such means as discussions at council
meetings or receipt of written information.
(emphasis added). Therefore, if the practice or
custom is “flagrant or severe” or if council has actual
knowledge of the conduct, custom and practice is
established. The instant case is easy since the
conduct (including numerous intentional violations of
court orders by multiple city agents) was flagrant and
City Council had actual knowledge of both the Leath
and Aspenwood matters. What happened to the
Leaths was egregious, so much so that the City tried
to settle that case in secret. And by the time Yetiv
complained to Houston’s Council, Council already
had actual knowledge of the wrongful revocation of
permits and demolition of the Leath apartments.
The appeals court cites a single case in support of its “no
policy/custom” conclusion, and describes the holding of that
case as follows: “no well-settled, widespread custom existed
when about 12 racial-harassment incidents occurred over two
and one-half years and high-ranking officials learned of
occasional incidents.” (App. 24a). Hamilton v. Rodgers, 791
F.2d 439, 443 (5" Cir. 1986).
The Hamilton case is entirely distinguishable. First, the
appeals court’s citation of the holding is inaccurate. The
Fifth Circuit actually said this:
Perhaps a dozen incidents arose within the two and a half
28
years preceding Hamilton’s suspension; no continual
pattern therefore arose that would warrant the imputation
of constructive knowledge to high ranking officers of the
Fire Department.
(emphasis added). Thus, in Hamilton, the Fifth Circuit was
concerned that there were not enough racial incidents for the
municipality (the defendant in Hamilton was again the City
of Houston) to have become aware of the problem.
Obviously, that is entirely distinguishable from the instant
case where the City of Houston Council had voted to pay
$210,000 to settle the Leath lawsuit and was informed by
Yetiv of the unconstitutional conduct against him and
Aspenwood. Thus, Council had actual knowledge of
repeated constitutional misconduct, and there was no issue of
“imputing constructive knowledge.”
Secondly, the Hamilton court—unlike the appeals court
in the instant case—did not have a problem with the fact that
all the racial incidents were directed at the plaintiff in that
case. The Hamilton court did not require there to be other
“victims” of the City of Houston’s_ constitutional
misconduct.
Finally, the Fifth Circuit noted that when supervisors
became aware of the racial abuse directed at Hamilton, “they
promptly acted to discourage them, reprimanding those
responsible and noting the incidents in the offenders’ files.”
Id. In contrast, when Yetiv advised Council of the
constitutional misconduct here, Council sued him.
In summary, Petitioners here adduced more than
enough evidence to sustain the finding that the City of
Houston had a policy of conducting illegal searches, of
withholding or revoking permits, and of improperly
demolishing apartments.
CONCLUSION
In this case, the jury found that the City of Houston
29
violated Petitioners’ Fourth, Fifth and Fourteenth
Amendment rights by withholding building repair permits
and illegally searching Aspenwood’s property. Petitioners
did everything a reasonable property owner could possibly
do to get permits, but it was only by suing the City that
Petitioners were finally able to get those permits. Instead of
issuing the permits, the City marshalled the full force of its
police power and retaliated with a massive raid more fitting
of a drug bust of a narcotic kingpin rather of a city’s dealing
with a law-abiding businessman trying to rejuvenate low-
income apartments.
The court of appeals indulged multiple inferences against
the jury verdict, misinterpreted this Court’s decisions and
erred in concluding the City of Houston was not liable, thus
vitiating §1983. The appeals court concluded that the City is
not liable for the unconstitutional conduct found by the jury
even though Yetiv complained three times to City council
about the permit-withholding and illegal searches. Contrary
to Owen and Fact Concerts, the appeals court concluded that
the fact that Houston City Council ignored Yetiv’s
complaints was not sufficient to attach liability to the City.
The appeals court has provided a recipe to cities on how
to avoid § 1983 liability. First, a City must pass an
ordinance stating that the conduct of every city employee is
subject to appeal to City Council. That means, according to
the appeals court, that no City agent could be a policymaker
since there is theoretical review of every city employee.
According to the appeals court, one need not worry if the
oversight is real or imagined—as it was in this case. Second,
City Council must not take any action regardless of the
nature of the complaints that are brought to it because
inaction is not actionable under § 1983.
This is not the state of § 1983 law. Council’s ignoring
Yetiv’s complaints about unconstitutional conduct—which
complaints the jury found to be valid—made the City liable
for subsequent similar unconstitutional conduct. In this case,
Council had actual knowledge of this conduct and instead of
30
putting a stop to it, Council “shot the messenger.” In
addition, Link was clearly a policymaker whose misconduct
attached liability to the City. Finally, Petitioners proved that
city agents illegally implemented against Petitioners City
policies to search and withhold building repair permits.
This case was an egregious display of the abuse of
governmental power, and is precisely the sort of case that §
1983 was meant to redress. Petitioners respectfully request
that this Honorable Court grant their Petition, and then
reinstate the jury’s verdict in favor of Petitioners.
September 24, 2002.
Respectfully submitted,
JACK YETIV
350 Allen Rd.
Woodside, CA 94062
Ph: (650) 851-2425
Fax: (650) 851-9895
In Pro Se
MARVIN ISGUR
700 Louisiana, Suite 4600
Houston, Texas 77002
Ph: (713) 222-1480
Fax: (713) 222-1475
Counsel of Record
Aspenwood Apt. Corp.
APPENDIX TABLE OF CONTENTS
APPENDIX A
Letter from Texas Supreme Court denying
Petitioners’ Petition for Review ..................... la
APPENDIX B
Opinion from the First Court of Appeals,
Houston, TX, dated Aug. 27, 1999 ............... 2a
APPENDIX C
Opinion from the First Court of Appeals,
Houston, TX, dated Jan. 24, 2002 ............. 66a
APPENDIX D
- Modified Final Judgment, 215th District Court,
Harris County, TX, dated Oct. 20, 1997 ..... 79a
APPENDIX E
Ee 87a
APPENDIX F
Indemnification provision contained in City of
Houston Code of Ordinances (City
ei iebssasscscrcesscvsecssscescesesess 88a
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APPENDIX A
THE SUPREME COURT OF TEXAS
Post Office Box 12248
Austin, Texas 78711
é (512) 463-1312
June 27, 2002
Mr. W. Briscoe Swan
1900 N. Loop West, Suite 500
Houston, TX 77018-8120
Mr. Jeff D. Lefkowitz
Winsted, Sechrest & Minick, PC
910 Travis St., Suite 2400
Houston, TX 77002
RE: Case Number: 02-0229
Court of Appeals Number: 01-97-01378-CV
Trial Court Number: 94-59707
Style: ASPENWOOD APT. CORP. AND JACK YETIV
V.
CITY OF HOUSTON
Dear Counsel:
Today, the Supreme Court of Texas denied both
petitions for review in the above numbered and styled
case.
Sincerely,
John T. Adams, Clerk
by Blanca E. Morin
Blanca E. Morin, Deputy
ce: Ms. Margie Thompson, Clerk
Mr. Charles Bacarisse
Mr. Jack Yetiv
2a
APPENDIX B
Court of Appeals of Texas, Houston (1st Dist.).
The CITY OF HOUSTON, Appellant,
v.
ASPENWOOD APARTMENT CORPORATION and
Jack Yetiv, M.D., PH.D., Appellees.
ASPENWOOD APARTMENT CORPORATION and
Jack Yetiv, M.D., PH.D., Appellants,
v.
Beatrice LINK and Helen Huey, Appellees.
No. 01-97-01378-CV.
Aug. 27, 1999.
On Appeal from the 215th District Court, Harris
County, Texas, Trial Court Cause No. 9459707.
Panel consists of Justices COHEN, HEDGES, and
NUCHIA.
OPINION
MURRY B. COHEN, Justice.
*1 The City of Houston appeals from a judgment
against it for $340,000 actual damages for section
1983! violations and a judgment declaring parts of the
City’s Comprehensive Urban Rehabilitation and
Building Minimum Standards (CURB) ordinance
unconstitutionally vague. Dr. Yetiv and Aspenwood
Apartment Corporation (AAC) appeal from summary
judgment on their claims against Beatrice Link,
Assistant Director of Neighborhood Protection, and
1 42 USC. § 1983 (1999) (relevant portion not
substantively changed by 1996 amendment).
3a
former Houston City Council member Helen Huey in
their individual capacities. We reverse the section
1983 judgment against the City, render judgment that
Yetiv and AAC take nothing on those claims, and
dissolve a related injunction. We also reverse the
judgment declaring various CURB provisions
unconstitutional and dissolve a related injunction.
Finally, we reverse the summary judgments in favor of
Link and Huey and remand for determination of the
claims against them.
BACKGROUND
Yetiv is the sole shareholder and officer of AAC.
Sometime before April 1994, AAC was considering
purchasing a low-income apartment complex (the AAC
apartments) in Huey’s council district. Yetiv knew that
buildings C, D, E, G, J, K, L, M, and N of these
apartments were under a Houston Building and
Standards Commission’s (BSC) dangerous building
order (DBO) of November 3, 1993. The DBO ordered
the property owner to obtain building permits within
30 days, begin repairs on the nine buildings within 90
days, and complete repairs within 210 days from the
DBO’s date. The DBO provided that, if the owner did
not comply, the City could remedy, alleviate, or
remove any substandard building.
Before purchasing the apartments, Yetiv decided to
meet with Link to discuss the DBO. They met on April
9, 1994. At that meeting, Yetiv asked whether the
DBO’s timelines could be extended for six months
beyond their scheduled expiration date of June 3,
1994. Link testified that she told Yetiv that, to get an
extension, he would need to submit a “cure plan” (list
of repairs) for all condemned buildings and to
complete an extension request form, which required
the owner (1) to post a bond if the DBO’s timelines
had expired; (2) to attach a cure plan; and (3) if he had
4a
not obtained permits to repair or demolish the
building, to get an occupancy inspection to determine
the repairs to be made. In contrast, Yetiv testified Link
told him that only a cure plan for some of the
condemned buildings and the completed extension
request form were required for an extension. Yetiv
submitted a cure plan for only four of the buildings,
testifying that Link told him to limit the cure plans
only to the buildings that he could realistically
complete within the extension period.
Link said she told Yetiv in May 1994 that AAC’s
application was deficient because it needed cure plans
for all nine buildings. Yetiv denied Link required cure
plans for all nine buildings. On May 20, Yetiv
submitted a revised cure plan, which Link again
rejected. For disputed reasons, the extension was
never approved, and the DBO’s timelines expired on
June 3, 1994.
*2 After the DBO’s timelines expired, the Building
Inspection Division placed a “hold” on the AAC
apartments, preventing issuance of repair or building
permits. The parties dispute whether AAC needed an
occupancy inspection before executing a _ bond
agreement to have the hold lifted. Again for disputed
reasons, AAC never received an occupancy inspection
or submitted another amended cure plan, although it
posted a bond. During this time, AAC did some work
on some of the condemned buildings without permits.
Yetiv contended this was work for which permits were
not required or was cleaning; the City, Link, and Huey
disagreed.
Yetiv and AAC’s relationship with Link and Huey
continued to deteriorate. Yetiv and AAC contended
that Link would not respond to many of Yetiv’s
communications, denied him permits without reason,
and improperly placed holds on the AAC apartments.
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5a
Yetiv and AAC also contended Link and Huey had the
apartments watched or inspected frequently, they
ordered meritless inspections, Huey pushed for the
AAC apartments’ demolition to gentrify her district,
Huey would not return many of Yetiv’s
communications, and Link and Huey misinformed
City Council about AAC’s case. Link and Huey
disputed these claims.
On October 11, 1994, Yetiv appeared before City
Council to complain about Link and CURB, after
having complained similarly on television the night
before. Shortly thereafter, on October 27, 1994, the
Building Inspection Division conducted a mass
inspection of the AAC apartments under a search
warrant. The City, Link, and Huey contended the
inspection was to determine if AAC was doing repairs
without permits, and they denied the inspectors lied to
obtain the search warrant or had illegally entered
AAC’s property to collect information for that warrant.
Yetiv and AAC claimed the inspectors illegally entered
their property after Yetiv’s City Council presentation,
issued meritless citations to harass and retaliate
against him, and lied in the warrant’s supporting
affidavit.
In December 1994, the City sued Yetiv and AAC to
enjoin them from repairing the AAC apartments
without permits. Shortly afterwards, AAC submitted
revised cure plans, which were approved, for buildings
C, D, and F. Yetiv then sought a temporary injunction
to compel the permits’ issuance. At the hearing, the
parties signed an agreed order, acknowledging that
AAC had submitted sufficient information for permits
to issue on buildings C, D, and F, and stating that the
City would approve information submitted on the
remaining buildings if the building official determined
the information for them was substantially similar to
that submitted for buildings C, D, and F. The City and
6a
AAC had fewer problems until October 1995, when
Link placed another hold on the AAC apartments.
Link claimed AAC had allowed certain permits to
expire, but Yetiv and AAC claimed the City violated the
agreed order. In March 1996, AAC submitted a cure
plan that met the City’s approval. Yetiv sought
another injunction in April 1996 to compel the
permits’ issuance, and, a few days later, the permits
were issued. AAC has had no further problems
obtaining permits since April 1996. In December
1996, an inspector came to another of Yetiv’s
properties in Huey’s district. Yetiv then obtained a
temporary injunction preventing inspections at any of
his apartment properties without his or the judge’s
permission. The ancillary judge eventually held the
City in contempt because it violated the agreed order
by continuing inspections.
*3 Yetiv and AAC counterclaimed against the City,
joining Huey and Link as counterdefendants,? alleging
malicious prosecution and abuse of process;’ tortious
interference with contracts between AAC and its
tenants and employees; and section 1983 claims for
unconstitutional “taking” of their property, retaliation
for asserting First Amendment rights, illegal searches,
and due process violations. They also sought a
declaratory judgment for “takings” and due course of
law violations under the Texas Constitution caused by
improperly withholding permits. Yetivand/ ~ “ght
actual and punitive damages, attorney’s , an
injunction requiring the City to issue building permits
to AAC, and a declaration that CURB was
2 Huey and Link were sued in their individual and official
capacities.
3 AAC’s counterclaim was dropped before summary
judgment was granted, and Yetiv and AAC admit this on
appeal.
7a
unconstitutional because it discriminated against
minorities.
In June 1997, the trial judge granted summary
judgment for Huey on all claims asserted against her
individually and for Link on all state-law claims
against her individually. In July 1997, Yetiv and AAC
nonsuited their federal-law (section 1983) claims
against Link. In August 1997, the trial judge granted
partial summary judgment: for Yetiv and AAC,
declaring CURB sections 10- 361(a)(3, 5, 6, 7, 8, 10)
and 10-361(b)(1, 2) unconstitutionally vague and
enjoining their enforcement.
Yetiv and AAC proceeded to trial against the City
only. The jury was charged only on Yetiv’s section
1983 claim against the City for First Amendment
retaliation and on AAC’s section 1983 claim against
the City for illegal searches and permit withholding.
After finding that the City did not retaliate against
Yetiv for asserting his First Amendment rights, the
jury found that the City (1) searched the AAC
apartments without a search warrant or beyond any
warrant’s scope and (2) arbitrarily or capriciously
denied or withheld permits for work on the AAC
apartments. The jury found AAC’s actual damages to
be $3,000 for the unlawful searches and $337,500 for
withheld permits. The trial judge rendered final
judgment (1) incorporating the jury verdict; (2)
awarding AAC $340,500 actual damages against the
City; (3) incorporating the partial summary judgment
declaring the challenged CURB sections
unconstitutional for vagueness and enjoining the City
from the provisions’ enforcement; (4) awarding
$70,000 attorney’s fees for Yetiv’s CURB challenge and
$99,450 attorney’s fees for AAC’s section 1983 claims
(plus up to $120,000 attorney’s fees contingent on
appeal), pre- and post-judgment interest, and costs
8a
against the City; (5) incorporating the summary
judgments in favor of Link and Huey, individually, and
dismissing without prejudice Yetiv and AAC’s section
1983 claims against Link; and (6) issuing a permanent
injunction ordering the City
to desist and refrain from conducting ANY
inspection, other than those related to construction
and/or renovation of buildings of the [AAC
apartments], UNLESS the inspections are authorized
by a Court or by Dr. Yetiv, in writing. Nothing in this
Order restricts the City of Houston Fire Department
or Police Department or another City department or
agency from responding to any emergency assistance
requests from the aforementioned properties.
*4 The City appeals from the portion of the judgment
declaring parts of CURB unconstitutional and
assessing damages against it on AAC’s section 1983
claims, and Yetiv and AAC appeal from the summary
judgments in favor of Huey and Link.
THE CITY’S APPEAL
A. Section 1983
In issues one through three, the City argues (1) the
evidence was legally and factually insufficient to
establish its liability to AAC under section 1983, (2)
the trial judge erred as a matter of law in ruling Link
was a “final policymaker,” and (3) the trial judge erred
in submitting the following jury questions because
they impermissibly allowed the jury to find the City
liable solely on Link’s decisions or on respondeat
superior:
Jury Question No. 2: Do you find that the City of
Houston undertook one or more searches of [AAC]’s
property without a search warrant which was based
on a truthful affidavit and/or that such searches
were beyond the scope of the warrant through
decisions of Beatrice Link, the Houston City Council
9a
and/or through a pattern, practice, policy or custom
in the City?
Jury Question No. 3: Do you find that the City of
Houston arbitrarily and/or capriciously denied or
withheld permits for authorization to work on its
buildings to [AAC], through decisions of Beatrice
Link, the Houston City Council and/or through a
pattern, practice, policy or custom in the City?
The charge contained the following instruction, as
well:
A City is liable for an unconstitutional governmental
policy, custom, ordinance, regulation, or decision.
Therefore, if you find that Dr. Yetiv and/or [AAC]
was injured as the proximate result of [the City’s]
policy, custom, ordinance, regulation, or decision,
whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official
policy, then the City itself will be liable. In
particular, [the City] is legally responsible for any
policy, custom, ordinance, regulation, or decision
endorsed by City Council. If you find that City
Council action or inaction violated Dr. Yetiv’s and/or
[AAC’s] constitutional rights, [the City] is liable for
such violations.
Even if you determine that the particular policy was
established for a single occasion, you may still find
that it represented an official policy of the City,
provided that a deliberate choice to follow a course of
action was made from among various alternatives by
the official or officials responsible for establishing
final policy with respect to the subject matter in
question. [The City] is responsible for policies or
practices of its employees if City Council knew or
should have known about an unlawful “pattern” of
conduct by City employees. .
We follow the usual standard of review for factual
sufficiency of the evidence and for legal sufficiency of
the evidence supporting issues on which the City did
10a
not have the burden of proof. See Transport Ins. Co. v.
Faircloth, 898 S.W.2d 269, 275-76 (Tex.1995) (legal
sufficiency); Cain _v. Bain, 709 S.W.2d_ 175, 176
(Tex. 1986) (factual sufficiency).
*5 The trial judge ruled as a matter of law, over the
City’s objection, that Link was a final policymaker for
purposes of the City’s liability under section 1983. The
charge then allowed the jury to find the City had
violated AAC’s rights if (1) a City Council decision did
so, (2) Link did so, or (3) the City Council actually or
constructively knew of a pattern or custom of City
employees doing so.
i. Municipal Liability under Section 1983
A city may not be held liable under section 1983 on a
respondeat superior theory. Monell v. Department of
Soc. Servs. of the City of New York, 436 U.S. 658, 692,
98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Rather, a
city may be held liable only when an injury was
inflicted pursuant to governmental policy or custom.
City of St. Louis v. Praprotnik, 485 U.S. 112, 121-22,
108 S.Ct. 915, 923, 99 L.Ed.2d 107 (1988) (plurality).
If an unconstitutional action implements or executes
even a single policy statement, ordinance, regulation,
or decision of
a. the city’s legislative body or
b. a city official responsible for establishing final
policy with respect to the subject matter in question
(a “final policymaker’),
the action is the city’s “policy.” Monell, 436 U.S. at
690-91, 98 S.Ct. at 2035-36; Pembaur v. City of
Cincinnati, 475 U.S. 469, 482-83, 106 S.Ct. 1292,
1299-1300, 89 L.Ed.2d 452 (1986); see Praprotnik,
485 U.S. at 123, 127, 108 S.Ct. at 924, 926 (single
final policymaker decision suffices). Similarly, if the
city legislative body or final policymaker expressly
ratifies a subordinate’s decision and the basis for it,
lla
the subordinate’s decision will become city policy.
Praprotnik, 485 U.S. at 127, 128, 108 S.Ct. at 926,
927.
Finally, if an unconstitutional custom or usage of city
employees is persistent, widespread, permanent, and
well-settled, it is the city’s “custom” even when it is
not approved by or based on a decision of the city’s
legislative body or final policymaker. Monell, 436 U.S.
at_ 690-91, 98 S.Ct. at 2036; Praprotnik, 485 U.S. at
122, 108 S.Ct. at 923; Pembaur, 475 U.S. at 483, 106
S.Ct. at 300; Bennett v. City of Slidell, 728 F.2d 762,
768 (5th Cir. 1984).
In summary, the City can have section 1983 liability
here only if
i. City Council (a) passed an ordinance or resolution
that city employees followed in improperly
withholding permits from Yetiv and AAC and illegally
searching the AAC apartments or (b) expressly
ratified these employees’ improper actions;
ii. Link was a final policymaker who (a) made a
decision or policy statement that city employees
followed in improperly withholding permits from AAC
and Yetiv and illegally searching the AAC
apartments or (b) expressly ratified these employees’
improper actions; or
*6 ii. There was a persistent, widespread,
permanent, and well-settled custom or usage of city
employees’ improperly withholding permits from and
illegally searching low-income housing.
2. Did City Council Expressly Adopt an
Unconstitutional Policy or Expressly Ratify
Subordinates’ Unconstitutional Actions?
The City first claims there was no evidence of
improper conduct by the City Council. We agree.
12a
Yetiv and AAC cite the following alleged City policies
as evidence of unconstitutional policy or ratification of
subordinates’ unconstitutional actions: (1) a policy to
demolish low-income housing, (2) a policy wrongfully
to withhold building and repair permits, and (3) a
policy for inspectors illegally to search Houston
residents’ housing. We look for evidence of these three
policies.*
Yetiv and AAC point to the following evidence they
claim shows that Houston City Council promulgated
or adopted these three policies:5
. Council’s approval of a 1994 secret settlement with
the Leaths, other apartment owners in Huey’s
district, whose apartments were demolished;
. An October Houston Chronicle article discussing the
above settlement’s sealing;
. Huey’s campaign photograph, showing her leaning
upon a sledgehammer and stating, “From putting a
sledgehammer to dangerous buildings to diplomatic
negotiations ... Helen’s two years at City Hall have
been busy and productive....”;
4 Yetiv and AAC did not submit a jury question on
demolition. However, we construe Yetiv and AAC’s
argument to be that evidence that the City wanted low-
income housing demolished would also be indirect evidence
that the City wrongfully withheld building permits for low-
income housing, i.e., if permits were withheld, repairs could
not be done, and buildings could be demolished. Therefore,
we review the evidence supporting a “demolition” policy.
5 The remaining “evidence,” omitted from our discussion,
on which Yetiv and AAC rely was either attached to a
pleading, a summary judgment response, or included in a
bill of exceptions and was not, therefore, before the jury.
Yetiv and AAC do not complain on appeal of the exclusion of
any evidence in their bill. In a sufficiency review, we cannot
consider any of the items not before the jury.
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- A Huey staff member’s notation: “I spoke to [a
constituent] about [the AAC apartments]. Told her
that you were on staff and your only focus is on
dangerous buildings and apartment complexes. She
was pleased to know that you were working to get
these dumps gone from District A”;
. An August 1993 filenote from an unidentified
person who accompanied an inspector to the AAC
apartments, stating in part, “The largest problem
that will be faced by the City when they present their
case [at a BSC hearing] on all the additional
buildings is that they all have repair permits out on
them. The City will be asking for a ‘repair or
demolish’ order, and the fact that repair permits are
in existence will work almost like an absolute
defense ...”;
. A neighbor’s deposition, stating that he and other
neighbors tried to have the AAC apartments
demolished;
. Videotape and text of, and a handout from, Yetiv’s
October 11, 1994 presentation to City Council,
discussing Link’s alleged harassment of him, noting
an incident when inspectors entered his property
without permission, suggesting CURB amendments
that would preserve low-income housing, and
claiming CURB as_ written and_— enforced
disproportionately targeted poor minorities and
discouraged the purchase of low-income properties.
. Videotape of a local news interview with Yetiv, in
which Yetiv discussed Link’s alleged harassment of
him and stated that CURB discouraged the purchase
of low-income housing.
Only the first of these seven acts is conduct by the
City, and it is not evidence of a City Council “policy
statement, ordinance, regulation, or decision”
regarding the AAC apartments. See Monell, 436 U.S. at
690, 98 S.Ct. at 2036. It does not show Council’s
“deliberate choice to follow a course of action ... from
l4a
among various alternatives,” ie., an express decision
by Council. See Pembaur, 475 U.S. at 483, 106 S.Ct.
at 1300. Furthermore, Huey’s actions are not those of -
the City Council. See City of Houston Charter, art. VII,
§ 3 (Act of 1905; added by amend. Aug. 15, 1942;
amend. Aug. 11, 1979; amend. Aug. 14, 1982)
(Council acts only by ordinance, resolution, or motion,
passed by majority vote). To hold otherwise would be
to hold the City responsible under the doctrine of
respondeat superior. The law prohibits that. Monell,
436 U.S. at 692, 98 S.Ct. at 2036.
*7 Yetiv and AAC next contend that Council ratified
subordinates’ actions by (1) voting to sue AAC and (2)
not investigating Yetiv’s claims. Council voted to sue
AAC for repairing without a permit; it did not vote to
withhold permits or to demolish or search AAC’s or
anyone’s buildings. Moreover, not investigating Yetiv’s
claims is not an express ratification of anything.
We distinguish Owen v. Independencé and Newport
v. Fact Concerts, Inc.,7 on which Yetiv and AAC rely. In
Owen, in which the Court considered whether
qualified immunity applies to a city under section
1983, the city council passed a motion for the city
manager to take “appropriate action” against the
police chief, which resulted in his firing, and to release
reports concerning the matter; the constitutional
injury arose directly out of this vote. Owen, 445 U.S.
at 628-29, 100 S.Ct. at 1404. In Fact Concerts, in
which the Court considered whether section 1983
allows punitive damages, the city council voted to
cancel Fact Concerts’s license; again, the
constitutional injury arose directly out of that vote.
Fact Concerts, 453 U.S. at 250-51, 101 S.Ct. at 2751.
Here, the constitutional injury the jury found did not
6 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980).
7 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981).
15a
arise out of Council’s vote to sue AAC for repairing
without a permit, and Yetiv and AAC point to no
evidence that Council voted, as the city councils did in
Owen and Fact Concerts, to withhold permits or
demolish or search anyone’s housing.
We hold the evidence on which Yetiv and AAC rely is
no evidence that Houston City Council executed a
policy statement, ordinance, regulation, or decision to
demolish or illegally search low-income housing or
withhold permits. Therefore, we also hold the trial
judge erred in submitting that portion of jury
questions two and three allowing a finding of City
liability based on City Council’s actions.
3. Was Link a Final Policymaker Who Could
Adopt an Unconstitutional Policy or Ratify
Subordinates’ Unconstitutional Actions?
The City next argues it cannot be liable for Link’s
actions because she was not a final policymaker.
For the City to be liable for any unconstitutional
actions by Link, Link had to have the authority to
make final policy in that particular area of the City’s
business. E.g., Praprotnik, 485 U.S. at 127, 108 S.Ct.
at 926. This is a preliminary legal question the judge
makes by reviewing relevant state and local law and
custom or usage having the force of law. Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 738, 109 S.Ct. 2702,
2724, 105 L.Ed.2d 598 (1989): Praprotnik, 485 U-S. at
124, 108 S.Ct. at 924. Final policymaking authority
may be granted directly by legislative enactment or
may be delegated. Pembaur, 475 U.S. at 483, 106
S.Ct. at 1300 (Brennan, J., joined by White, Marshall,
and Blackmun, JJ.). Yetiv and AAC contend both
happened here.
l6a
*8 Under the applicable statutes and ordinances,
Link was not a final policymaker either for permit
issuance or demolition decisions. State law gives
municipalities authority to adopt ordinances--a city
council action-- requiring, among other things,
securing, repairing, removing, or demolishing
substandard, hazardous, or dilapidated buildings.
Tex. Local Gov’t Code Ann. § 214.COl(a) (Vernon
Supp.1999). The Houston City Charter vests power to
enact and enforce ordinances protecting life, health,
and property and removing and abating nuisances in
the City Council, and the power to enforce laws and
ordinances in the mayor. City of Houston Charter, art.
II, § 2(a) (Act of 1905; amend. Oct. 15, 1913); art. VI,
§ 7a(1) (Added by amend. Jul. 26, 1947; amend. Jan.
27, 1968).
Link was the assistant director of the Neighborhood
Protection Division, an executive position with
discretionary authority under the Director of Public
Works. As assistant director, Link testified she
oversaw enforcement of the City’s health and safety
codes, which responsibility included establishing
enforcement procedures. Link admitted she was a
“building official,” whose authority § included
interpreting the Uniform Building Code (UBC) and
overseeing its enforcement and the issuance of
building and repair permits. UBC § § 202(a) (“The
building official is hereby authorized and directed to
enforce all provisions of this code [and] ... shall have
the power to render interpretation of this code and to
adopt and enforce rules and supplemental regulations
in order to clarify the application of its provisions.
Such interpretations, rules and regulations shall be in
8 Yetiv and AAC do not argue that, or brief whether, Link
was a final policymaker for purposes of authorizing
searches of the AAC apartments. Neither do they indicate
on what materials the trial judge could have relied for such
a determination.
17a
conformance with the intent and purpose of this
code.”), 303(a) (permit issuance) (Ord. No. 93-554, 5-
12-93); CURB § 10-321 (Ord. No. 94-674, § 15, 7-6-
94). Upon discovering a CURB violation, a building
official, such as Link, can issue a municipal court
citation, enforceable in municipal court, or request a
hearing before a hearing official or the BSC. CURB §
10-346, 10-347 (Ord. No. 94-674, § 15, 7-6-94). Both
the hearing official’s and BSC’s decisions are final
unless the property owner seeks rehearing or appeals
to district court. CURB § § 10-371, 10-394 (Ord. No.
93- 1570, § 1, 12-8-93); Procedural Rules of the
Building and Standards Commission of the City of
Houston, § 3.07, 2-23-94; see Tex. Loc. Gov't Code
Ann. § 94.039 (Vernon Supp.1999). State law
provides that “the governing body of the municipality”-
-here, City Council--may establish a BSC. Tex. Loc.
Gov't Code Ann. § 54.033 (Vernon Supp.1999). If the
owner fails to comply with the hearing officer’s or
BSC’s order, the building official must enforce the
order. CURB § 10-370 (Ord. No. 93-1570, § 1, 12-8-
93; Ord. No. 94-674, § 15, 7-6-94).
Link testified her decisions were subject to the review
of the Director of Public Works, whose decisions, in
turn, were subject to the mayor’s review. Moreover, a
building official’s decisions--including, the City claims
and Yetiv and AAC do not deny, denying repair
permits--are subject to review of the City’s General
Board of Appeals (GBA), whose duties include
interpreting the UBC, reporting to the mayor and City
Council on its actions, and recommending UBC
amendments. UBC § § 204(b) (Ord. No. 93-554, 5-12-
93). Finally, the GBA’s decisions are not final; they
can be appealed to City Council. UBC § 204(c) (Ord.
No. 93-554, 5-12-93).
*9 The above ordinances and statutes contemplate at
least City Council as the final policymaker in these
18a
two areas, but not building official Link, who only
carried out those policies. The fact that a
policymaking official has discretion in exercising her
functions does not, without more, make her a final
policymaking official. Pembaur, 475 U.S. at 481-83,
106 _ S Ct. at 1299-1300 (holding that the County
Prosecutor, te., the District Attorney, was the final
policymaker for law-enforcement matters under
following test: “The fact that a particular official--even
a policymaking official--has discretion in the exercise
of particular functions does not, without more, give
rise to municipal liability based on an exercise of that
discretion. The official must also be responsible for
establishing final governmental policy respecting such
activity before the municipality can be held liable.”).
Link did not have policymaking power similar to the
County Prosecutor or the County Sheriff in Pembaur.
Link clearly exercised discretion, but, because her
decisions were constrained by her superiors’ policies,
those policies, rather than Link’s discretion in
performing them, were the City’s acts. See Praprotnik,
485 U.S. at 127, 108 S.Ct. at 926 (rejecting argument
that plaintiffs supervisors, who fired him, were final
policymakers simply because the commission
reviewing their decision had only limited review; also
holding, “When an official’s discretionary decisions are
constrained by policies not of that official’s making,
those policies, rather than the _ subordinate’s
departures from them, are the act of the
municipality.”).
Yetiv claims that CURB section 10-370, entitled
“Action by city authorized,” demonstrates Link is a
final policymaker because it requires the building
official to enforce the hearing officer’s or BSC’s orderif
the party does not comply. CURB § 10-370 (Ord. No.
93-1570, § 1, 12-8-93; Ord. No. 94-674, § 15, 7-6-
94). In fact, the section gives a building official like
Link no discretion, much less policymaking authority,
ee
19a
to refuse to enforce a DBO. Jd. (“[T]he building official
shall cause the building to be vacated, repaired,
secured, and/or demolished pursuant to the order.”)
(emphasis added). Furthermore, the term “building
official” is used widely through CURB and the UBC to
refer to a number of people performing a host of
functions that do not involve the making of policy,
such as obtaining warrants for and conducting
inspections, issuing stop-work notices for code
violations, making valuations for fee assessments,
refunding erroneously collected fees, posting notice of
certain hearings and orders, assisting residents
vacating buildings, and the like. See, e.g., UBC § §
202(c), 202(d), 304(c), 304(f}, 305(a) (Ord. No. 93- 5954,
May 12, 1993); CURB § § 10-321, 10-322, 10-335,
10-349 (Ord. No. 93-1570, § 1, 12-8-93; Ord. No. 94-
674,§§ 11, 12, 14, 17, 7-6-94). If the term “building
official” always signified a final policymaker’s actions,
the City could be liable for actions clearly not
involving policymaking at all.
*10 Similarly, because Link’s decisions in the
complained-of area were subject to the review of the
City’s authorized policymakers, Link could not be a
final policymaker in that area. See Praprotnik, 485
U.S. at 127, 108 S.Ct. at 926 (“[W]hen a subordinate’s
decision is subject to review by the municipality’s
authorized policymakers, they have retained the
authority to measure the official’s conduct for
performance with their policies.”) (emphasis in
original). In response, Yetiv and AAC rely on the
following documents to show there was no effective
review of Link’s actions:
. Link’s August 22, 1994 letter telling Yetiv that
appeal of “the City’s” decisions regarding AAC’s
Progress or default in repairing its apartments under
the DBO was to “district court,” but also explaining
the timelines for the DBO’s “appeal” to the BSC had
Yetiv done so timely;
20a
. Yetiv’s September 6, 1994 letter to Huey, stating
that (1) the best course of action against Link was to
seek another BSC hearing; (2) he had left one
message with a BSC representative,? who did not
return his call; (3) Link had told Yetiv he could not
have a BSC hearing, which contradicted what other
city employees told him; and (4) Yetiv was
considering requesting a BSC rehearing;
. Yetiv received no reply to this letter or another to
Huey, in which he asked how to get a BSC hearing;
. The text of Yetiv’s October 11, 1994 presentation to
City Council, described above.
First, if Link misstated the appellate process, that
does not change the fact that the above ordinances
provide for BSC rehearing or appeal to the GBA.!°
Second, whether Huey or Link responded to Yetiv’s
queries on BSC procedure, or whether Yetiv sought a
BSC rehearing more than by his leaving a sole phone
message, does not affect whether Link was a final
9 Yetiv and AAC’s brief states that Yetiv later learned the
BSC representative, Kathy Morgan, worked for Link, but the
document cited in support does not say this. Later in their
brief, Yetiv and AAC repeat this claim and also say Link
“precluded Yetiv from getting a BSC hearing”; however, the
record cited in support does not say this.
10 Moreover, even if Link were delegated the final
decision in permit issuance, inspection, or demolition
matters, that would not necessarily transform her into a
policymaker (much less a final policymaker) in those
matters. See Jett v. Dallas Indep. Sch. Dist., 7 F.3d_ 1241,
1246 (5th Cir.1993) (opinion on remand from Supreme
Court, supra) (holding that official was not final
policymaker under statute’s terms, despite his having final
decision in the particular area). That is, the fact that one’s
decisions im an area are reviewable by policymakers
necessarily means one is not a final policymaker in that
area, but the fact that one’s decisions are final does not
necessarily make one a final policymaker.
2la
policymaker, which is determined by reviewing law
and custom amounting to law.!! See Jett, 491 U.S. at
738, 109 S.Ct. at 2724: Praprotnik, 485 US. at 124,
108 S.Ct. at 924. Finally, City Council’s not
investigating Link’s discretionary decisions after
Yetiv’s presentation was not a delegation to Link of
policymaking authority. See Praprotnik, 485 U.S. at
130, 108 S.Ct. at 927-28 (“Simply going along with
discretionary decisions made by one’s subordinates,
however, is not a delegation to them of the authority
to make policy.”).
We distinguish Houston v. De Trapani}? on which
Yetiv and AAC rely. The De Trapani court took a less
restrictive view of who a final policymaker could be
because a “takings” claim was asserted:
The preponderance of § 1983 problems arise in
contexts other than the takings arena.... Indeed, the
specter of respondeat superior from which the
judiciary has recoiled is purely a tort law concept,
traditionally confined to disputes between private
parties. Governmental takings are, of course, entirely
different by definition. This conclusion is bolstered
by the [U.S. Supreme] Court’s comment in Daniels
that the parameters of § 1983 may depend on the
right implicated.... Accordingly, we are disinclined to
give § 1983 the restrictive reading which the city
advocates on the basis of cases outside the arena of
takings.
'! Moreover, Yetiv admitted he (1) knew a BSC rehearing
was a way to challenge a DBO and (2) only once left a
message about a BSC rehearing for the BSC secretary,
although he saw the BSC secretary after that and never
asked her for a BSC rehearing or requested one in writing.
Although he sent BSC queries to Link, Yetiv knew Link was
not a BSC panel member.
12 771 S.W.2d 703 (Tex.App.--Houston [14th Dist.] 1989,
writ denied).
22a
*11 Id. at 707 (emphasis in original). Rather, we find
the following cases persuasive: City of Lubbock v.
Corbin,'3 City of Houston v. Leach,'!* Bennett v. City of
Slidell,!5 and Carr v. Town of Dewey Beach.'¢
We hold the evidence on which Yetiv and AAC rely is
no evidence Link was a final policymaker on
demolition or permit decisions for whose actions the
City could be liable. Therefore, we hold the trial judge
erred in determining that, as a matter of law, Link was
a final policymaker and in submitting those portions
of jury questions two and three allowing a finding of
City liability based on Link’s actions.
13 942 S.W.2d 14, 20-21 (Tex.App.--Amarillo 1996, writ
denied) (holding supervisor/inspector of building code
department not final policymaker for decisions relating to
home’s construction because his decisions appealable to
building board of appeals).
14 819 S$.W.2d 185, 199-200 (Tex.App.--Houston [14th
Dist.]|_ 1991, no writ) (holding director of solid waste
management not final policymaker for laying off
whistleblower, despite director’s ability to choose which job
classification to lay off, when city department reviewed
decision; employee had right to appeal to city commission,
even though commission had deferential review only; and
city charter and code vested employment authority in those
other than director).
1S 728 F.2d 762, 769-70 (Sth Cir. 1984) (holding building
inspector not final policymaker for refusing to issue
compliance certificate, despite having discretion, when he
executed policy established by code, had authority from
city’s chief administrative officer, and his decisions were
appealable).
16 730 F.Supp. 591, 605-08 (D.Del.1990) (building
inspector).
23a
4. Did Yetiv and AAC Show an Unconstitutional
Pattern or Custom of City Employees for Which
the City Can be Liable?
The City next argues there was no or insufficient
evidence of a persistent, widespread, permanent, and
well-settled pattern or custom of denying permits or
demolishing or illegally searching low-income housing
for which the City could be liable.
In response, Yetiv and AAC claim there were
widespread customs of permit withholding, low-
income-housing demolition, and illegal searches of
Houston residents’ buildings. They rely on the same
evidence on which they relied to show a City Council
policy decision (section A, 2 above). However, this is
evidence at most of a sealed settlement, Huey’s
interest in dangerous buildings, neighbors’ (not city
employees) wish to demolish the AAC apartments,
and Yetiv’s complaints to Council of Link’s
harassment of him and AAC. Moreover, the only other
evidence Yetiv and AAC discuss on appeal does not
show a widespread and well-settled pattern of denying
permits or demolishing or illegally searching low-
income housing:
. The Leaths, whose settlement with the City was
sealed, testified their property had a DBO and was in
disrepair; they wished to convert the property to a
seniors assisted-living complex (ie., not necessarily
low-income housing _like AAC’s); Huey increased
inspections; the Leaths understood their work
permits were revoked at Huey’s insistence, but they
did not know why; Huey told them she did not want
their apartments renovated: and the building was
demolished, but after the Leaths consented.
. Perry Kay testified he demolished his rental house
after the City ordered him to demolish, repair, or
secure it within 30 days and he could not obtain
funding for repairs in time. Kay admitted the
24a
property needed some repairs, but he had not been
able to get funding for repairs for five years or to
have the building renovated for 10 years. Kay did not
submit any written cure plans (though he told the
hearing officer he wanted to build a daycare center),
seek a BSC rehearing, apply for building permits, or
detail the repairs he intended to do before or after
the BSC hearing. Kay did not testify that this was
low- income rental property.
*12 . Tony Frapps testified he owns between 500
and 600 _ single-family, low-to-moderate-income
rental homes. Frapps stated only that DBOs have
been issued on some of his houses and he has “had
some contacts” and “problems” with Neighborhood
Protection Division, but he did not specify what or
why. He has had no problems getting permits.
Kay did not testify that his property was low-income,
that he was denied permits, or that anyone illegally
searched his property. Frapps’s testimony of some
“contacts” and “problems” with the Neighborhood
Protection Division does not show any of the alleged
customs, and Frapps testified he had no problems
getting permits.
Therefore, the only evidence of any custom or usage
of demolishing or searching low-income housing or
withholding permits involves the AAC apartments and
the Leaths’s buildings. These limited incidents
involving only two parties, although known to Council,
do not make a persistent, widespread, permanent, and
well-settled custom for which the City can be liable.
See Hamilton _v. Rodgers, 791 F.2d 439, 443 (Sth
Cir.1986) (holding no well-settled, widespread custom
existed when about 12 racial-harassment incidents
occurred over two and one-half years and high-
ranking officials learned of occasional incidents).
Compare Webster v. City of Houston, 689 F.2d 1220,
1227 (5th Cir.1982) (holding custom for which city
25a
could be liable existed when 75 to 80 percent of police
officers carried “throw-down” weapons and police
department covered up use of throw-down weapon in
the shooting of the plaintiffs’ family member), vacated
on other grounds, 735 F.2d 838, 842 (5th Cir.1984) (en
banc), affd in part on pertinent grounds and rev’d in
part on other grounds, 739 F.2d 993, 994 (Sth
Cir. 1984) (en banc rehearing).
We hold the evidence on which Yetiv and AAC rely is
no evidence of a persistent, widespread, permanent,
and well-settled custom or usage to demolish or
illegally search low-income housing or withhold
building permits from Houston residents. Therefore,
we hold the trial judge erred in submitting that
portion of jury questions two and three allowing a
finding of City liability based on custom or usage.
5. Conclusion
We sustain the City’s issues one through three.
Having found no evidence supporting the City’s
liability for any employee’s actions, we do not reach
the City’s issues four and five (whether the due
process claims were ripe or correct). Having found no
evidence supporting jury findings two and three, we
render judgment that AAC take nothing on its section
1983 claims against the City. Therefore, we need not
reach the City’s issues six and seven, dealing with the
measure of and evidence supporting actual damages.
We further hold the trial judge erred in enjoining the
City’s inspections of the AAC apartments based upon
the jury’s finding of section 1983 liability, and we
render judgment dissolving the injunction.
26a
B. Constitutionality of Various CURB
Provisions
e Procedural Background
*13 In May 1997, Yetiv and AAC moved for partial
summary judgment, seeking, among other things, a
declaration that CURB sections 10-361(a)(3, 5, 6, 7, 8,
10) and 10-361(b)(1, 2) were unconstitutionally vague
on their face and as applied to them and an injunction
preventing their enforcement.!’ The trial judge granted
the motion, ruled the following CURB provisions were
unconstitutionally vague, and enjoined the City from
enforcing them:
Sec. 10-361. Dangerous buildings defined.
(a) All buildings, structures, dwellings, dwelling
units, and accessory buildings, regardless of the
date of their construction, that have any or all of the
following defects are deemed to be dilapidated,
substandard or unfit for human habitation and a
danger to the public health, safety and welfare, and
are further declared to be dangerous buildings:
kkk
(3) Roofs or walls_that are not weathertight and
waterproof; ...
(5) Parts that are not properly attached so that they
may fall or injure members of the public or property;
(6) Light, air or sanitation facilities that are
inadequate to protect the life, safety or the general
health and welfare of the structure’s occupants or
inhabitants of the city;
17 Although the motion for partial summary judgment
was styled as Yetiv’s, we find he brought it for himself, in
his individual capacity, and for AAC, in his representative
capacity, for the reasons stated in Section A of the portion
of this opinion treating Yetiv and AAC’s appeal, below.
27a
(7) Unsafe or defective electrical wiring, devices or
equipment, or unsafe or defective gas piping or
appliances that are liable to cause or promote fires;
(8) Damage by fire, explosion, wind, vandalism, the
elements of nature or otherwise so as to be
dangerous to the life, safety or the general health
and welfare of the structure’s occupants or
inhabitants of the city; ...
(10) Conditions that vivlate any provision of this
Code, the Building Code or the city fire Code to such
an extent as to be a danger to the public health,
safety, and welfare; ...
(b) A building that is boarded up, fenced or
otherwise secured in any manner is nevertheless
declared~ to be a dangerous building under the
foregoing criteria if:
(1) The building constitutes a danger to the public
even though secured from entry;
(2) The building’s roof, walls or floor contains holes
that would allow insects, ectoparasites, rodents or
other pests to gain access to the building for
harborage to the extent constituting a present
hazard to health or safety,....
CURB § 10-361(a)(3, 5, 6, 7, 8, 10), (b)(1, 2) (Ord.
No. 93-1570, § 1, 12-8- 93) (emphasis indicates terms
Yetiv and AAC claimed were vague).
2. Do Yetiv and AAC Have Standing to Make an
As-Applied Vagueness Challenge to these CURB
Provisions?
In issue eight, the City argues for the first time on
appeal that Yetiv and AAC do not have standing to
assert that the CURB provisions were
unconstitutionally vague as applied to them because
their DBO and municipal court citations were issued
under CURB’s predecessor, not under CURB.
28a
Yetiv and AAC initially respond that the City did not
preserve its challenge to their standing, but standing
is a component of subject-matter jurisdiction and may
be raised for the first time on appeal. Texas Ass’n of
Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-46
(Tex.1993). Yetiv and AAC also claim that we may
consider only summary judgment evidence, but we
may review the whole record. Id. at 446.
*14 It was Yetiv and AAC’s burden to show the
complained-of CURB ‘ provisions were
unconstitutionally applied to them. See Vuong v. State,
830 S.W.2d 929, 941 (Tex.Crim.App.1992) (before
court addresses unconstitutionality issues on appeal,
appellant must first show vague law
unconstitutionally applied to him).
Yetiv and AAC first point to the sole DBO issued for
the AAC apartments as_ evidence CURB was
unconstitutionally applied to them. However, this
DBO was not issued under CURB. It was issued under
former ordinance 10-326(e)(1)-(5), (7)- (10). CURB was
not adopted until December 12, 1993, after the DBO
was issued on November 3, 1993. The DBO states the
buildings were “deteriorated, open, vacant and
accessible,” in violation of former City Code sections
10-326(e)(1)-(5), (7)-(10); “dilapidated, substandard or
unfit for human habitation”; “constitute [d] a hazard
to the health, safety or welfare of the occupant and/or
the citizens”; and “dangerous buildings within the
terms of [former] Section 10-326 of the City of
Houston’s Code of Ordinances.” However, the DBO
does not state the buildings were found to be
“dangerous buildings” for the reasons provided in the
challenged section of the present ordinance. !8
18 For example, the DBO does not state the buildings
were dangerous because of walls that were not
“weathertight” or “weatherproof,” for “parts” that were not
“properly attached,” for “unsafe or defective” wiring, for
29a
Yetiv and AAC next rely on the following facts
occurring in 1994, after CURB’s effective date: (1) city
inspectors issued 23 citations to Yetiv at once, but
these were not for violations of the challenged CURB
provisions above; instead, they were for building
without permits and for not timely carrying out the
“expired” DBO’s requirements of getting permits and
making repairs; (2) the inspectors never showed up for
the hearing on these 23 citations; (3) city inspectors
issued Yetiv a violation notice for having a shopping
cart on his property; and (4) three city inspectors
could not define some of the complained-of CURB
terms in the abstract. These facts are not relevant to
whether the challenged CURB provisions were
unconstitutionally applied to AAC or Yetiv, ie., the
indicated evidence does not show the citations were
levied for violations of the complained-of provisions or
upon application of the complained-of terms. We have
reviewed Yetiv’s entire trial testimony, and he did not
testify that he was cited or received another DBO for
violations of the complained-of CURB provisions or
upon application of the complained-of CURB terms.
Neither did he testify that anyone told him that he
would be issued CURB citations or DBOs in the
future. At most, Yetiv in general terms testified he
disagreed with the “expired” DBO’s determination that
some of his buildings were dangerous.
However, our own review of the record reveals an
August 10, 1994 letter (post- CURB’s effective date of
December 12, 1993) from Link to Yetiv, recounting five
violations at the AAC apartments (“unsecured
buildings; evidence of rodent infestation; roach
infestation; uncapped sewer; exposed electrical
wiring”) and stating citations would issue if the
“holes” through which rodents could enter, or for any other
defects defined as they were in the challenged CURB
provisions.
30a
violations were not fixed.!9 The alleged violations must
have been violations of CURB, as they were discovered
after CURB’s effective date. Of these five violations, the
four that concern the challenged CURB terms were
“exposed electrical wiring” (§ 10-361(a)(7)), “evidence
of rodent infestation” and “roach infestation” (§ 10-
361(b)(2)), and “uncapped sewer” (§ 10-361(a)(6)).
*15 Yetiv and AAC did not show they were penalized
under any of the complained-of CURB provisions
except the four relevant ones mentioned in Link’s
August 10, 1994 letter. Therefore, we hold they had no
standing to challenge any but those four terms for as-
applied vagueness. See Johnson v. State, 853 S.W.2d
027, 534 (Tex.Crim.App.1992) (holding defendant
couid not challenge for vagueness language contained
in statute that was inapplicable to him); cf Oil Well
Drilling Co. v. Associated Indem. Corp., 153 Tex. 153,
264 S.W.2d 697, 699-700 (Tex.1954) (holding party
could not complain that statute was
unconstitutionally discriminatory for allowing insurer
discretion not to issue policy under certain plan when
party was issued policy under that plan).
3. The Merits of Yetiv and AAC’s As-Applied
Vagueness Challenge
We next examine whether the four challenged CURB
provisions that Link’s August 10, 1994 letter alleged
Yetiv and AAC violated were unconstitutionally vague
as applied. The void-for-vagueness doctrine requires
that a penal statute?° define the offense with sufficient
19 The letter was attached to Yetiv and AAC’s response to
Huey’s and Link’s summary judgment motions.
20 The City conceded that CURB is penal because it
provides misdemeanor penalties for violations. See CURB §
10-320 (Ord. No. 93-1570, § 1, 12-8-93; Ord. No. 95-228, §
5, 3-1-95).
3la
definiteness that an ordinary person can understand
what conduct is prohibited and so that the statute will
not be enforced arbitrarily and discriminatorily.
Kolender v. Lawson, 461 U.S. 352. 357-58, 103 S.Ct.
1855, 1858, 75 L.Ed.2d 903 (1983). If a law clearly
applies to an individual’s conduct under any
construction of that law, then that law cannot be
unconstitutionally vague as applied to his conduct.
See Vuong, 830 S.W.2d at 941.
No one disputes that, when the DBO was issued on
November 3, 1993, some of the condemned AAC
apartment buildings had caved-in roofs that exposed
the interior to the elements and contained fallen
structural materials. Additionally, the four relevant
CURB violations mentioned in Link’s August 10, 1994
letter would clearly have fallen under the challenged
terms. For example, “exposed electrical wiring” (the
alleged violation) is obviously “unsafe or defective
electrical wiring” (the relevant term of section 10-
36 1(a)(7)). An “uncapped sewer” (the alleged violation)
easily constitutes an inadequate “sanitation facilit[y]”
(the relevant term of section 10-36 1(a)(6)). Finally,
caved-in roofs would have been sufficiently-sized
“holes that would allow insects” to gain access (the
relevant part of section 10-361(b)(2)) and to leave
“evidence of rodent infestation” and “roach
infestation”(the alleged violations).
Accordingly, Yetiv and AAC’s as-applied vagueness
challenge fails because, under any construction of the
CURB ordinance, these buildings and violations would
have fallen within its terms. See Cain v. State, 855
S.W.2d_ 714, 718 (Tex.Crim.App.1993) (holding as-
applied vagueness’ challenge failed because
defendant’s conduct clearly violated nepotism statute);
Vuong, 830 S.W.2d at 941. Therefore, summary
judgment was improper on this ground.
32a
4. The Merits of Yetiv and AAC’s Facial
Vagueness Challenge
*16 Yetiv and AAC’s partial summary judgment
motion alternatively argued that the challenged CURB
provisions were unconstitutionally vague on their face.
We will uphold Yetiv and AAC’s facial vagueness
challenge only if the challenged CURB provisions are
impermissibly vague in all their applications. £.g.,
Village of Hoffman_Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186,
1191, 71 L.Ed.2d 362 (1982). That is, Yetiv and AAC
must establish that the challenged CURB provisions
always operate unconstitutionally. Barshop v. Medina
County Underground Water Conservation Dist., 925
S.W.2d 618, 627 (Tex.1996).2)} Yetiv and AAC’s facial
vagueness challenge fails if they “engage[d] in some
conduct that is clearly proscribed.” Flipside, 455 U.S.
at 495 and n. 7; 102 S.Ct. at 1191 and n. 7
(considering facial vagueness challenge and reasoning,
“ ‘One to whose conduct a statute clearly applies may
not successfully challenge it for vagueness.’ The
rationale is evident: to sustain such a challenge, the
complainant must prove that the enactment is vague
‘not in the sense that it requires a person to conform
his conduct to an imprecise but comprehensible
normative standard, but rather in the sense that no
standard of conduct is specified at all.’ “) (citations
omitted).
The same evidence discussed above for the as-applied
vagueness challenge defeats the facial one, as some of
the AAC apartment buildings clearly fell within the
21 Therefore, Yetiv and AAC’s evidence showing that
some city inspectors could not define some of the
complained-of CURB terms in the abstract could not,
without more, carry their burden of showing that the terms
were unconstitutionally vague on their face.
33a
challenged CURB terms.?2 See id., 455 U.S. at 501-03,
102 S.Ct. at 1195-96 (overruling challenge that terms
“designed for ... use” and “marketed for use” were
facially vague, when some but not all of plaintiff's
products clearly fell within those terms). Therefore,
summary judgment was improper on this ground.
5. Conclusion
We hold Yetiv and AAC did not have standing to
challenge the constitutionality of CURB sections 10-
361(a)(3, 5, 8, 10) and 10-361(b)(1) for as-applied
vagueness. We further hold that Yetiv and AAC’s as-
applied vagueness challenge to the remaining CURB
sections, and their facial vagueness challenge to all of
the CURB sections, failed as a matter of law.
22 For example, a caved-in roof is clearly not
“weathertight and waterproof,” which CURB defines as
“made or assembled so that water cannot enter or escape”
and “able to withstand exposure to weather without
damage.” CURB § 10-317 (Ord. No. 93-1570, § 1, 12-8-93;
Ord. No. 94-674, § 10, 7-6-94). The dangling boards and
caved-in roofing materials were “parts ... not properly
attached ... so that they may fall or injure ...” under any
definition of the terms. If a building is caved in and open to
the elements, its “light, air, and sanitation facilities ... are
inadequate to protect ... life, safety or ... health and
welfare....” Exposed wiring is obviously “unsafe or defective
electrical wiring ... devices or equipment ... liable to cause
or promote fires.” A water-damaged roof that has collapsed
is “damage[d] ... by the elements of nature ... so as to be
dangerous....” Moreover, “danger” is generally understood
as exposure or liability to injury, pain, or loss, a definition
that some of the dilapidated AAC apartment buildings
clearly fit. See WEBSTER’S NEW COLLEGIATE
DICTIONARY 285 (8th ed.1981). Finally, there had to be
sufficiently sized “holes that would allow insects [or]
rodents” to gain access for there to be “evidence of rodent
infestation” and “roach infestation,” and a building with a
caved-in roof obviously has sufficiently large “holes.”
34a
Therefore, we hold the trial judge erred in granting
summary judgment for Yetiv and AAC, declaring those
CURB provisions unconstitutional for vagueness, and
enjoining the City’s enforcement of those provisions.
We sustain issue eight.
C. Attorney’s Fees
In issue 10, the City challenges the award of
attorney’s fees on various grounds.
The jury found against Yetiv on his section 1983
claim against the City, and we have held AAC’s section
1983 claims against the City for illegal searches and
denial of permits fail. Because AAC and Yetiv did not
prevail on any of their section 1983 claims against the
City, they may not recover attorney’s fees on those
claims. 42 U.S.C. § 1988 (1999) (relevant portion not
substantively changed by 1996 amendment).
Therefore, we reverse that portion of the judgment
awarding AAC attorney’s fees against the City on its
section 1983 claims.
*1'77 However, the award of attorney’s fees in
declaratory judgment actions, such as that used here
to challenge CURB, is discretionary and is not
dependant on whether a party prevailed. ANR Prod.
Co. v. American Guar. & Liab. Ins. Co., 981 S.W.2d
889, 892 (Tex.App.--Houston [lst Dist.] 1998, no pet.);
see also Barshop v. Medina County Underground Water
Conservation Dist... 925 S.W.2d 618, 637-38
(Tex.1996). Therefore, we must reverse the attorney’s
fees awarded under the declaratory judgment statute
and remand for the trial judge to consider and
exercise his discretion on the amount of attorney’s
fees, if any, to be awarded under that statute. Id.
Because we must remand on this issue, we do not
consider the City’s issue 10. Because we have reversed
the judgment against the City and remanded on other
35a
issues, we also reverse the assessment of costs in the
court below against the City and remand for further
consideration of that issue.
YETIV AND AAC’S APPEAL
In a separate appeal, Yetiv and AAC complain of the
166a(c) summary judgments rendered for Huey and
Link. We follow the usual standard of review. Science
Spectrum, Inc. _v. Martinez, 941 S.W.2d 910, 911
(Tex.1997).
A. AAC’s Appellate Challenge
We must first address Huey’s contention that,
because AAC did not respond to her summary
judgment below, AAC is limited on appeal to arguing
only that her summary judgment grounds were legally
insufficient. See Houston v. Clear Creek Basin Auth..,
989 S.W.2d 671, 678 (Tex.1979).
The procedural history is important. On October 2,
1996, the trial judge dismissed AAC’s counterclaim
because AAC was not in good corporate standing. On
October 17, 1996, Yetiv filed an amended
counterclaim, naming AAC as a co- plaintiff and
Stating, “AAC’s ... causes of action are hereby pursued
by its sole shareholder, Jack Yetiv.” Huey and Link
moved for summary judgment against “Yetiv” on May
16, 1997, while AAC was incapacitated. Yetiv filed a
summary judgment response on May 30, 1997. On
June 17, 1997, AAC filed its first amended
counterclaim, claiming good standing as of June 10,
1997. Huey and Link did not amend their summary
judgment motions to include AAC. On June 20, 1997,
the trial judge granted partial summary judgments in
Huey and Link’s favor against both AAC and Yetiv.
36a
AAC has never attacked the summary judgments on
the ground Huey and Link did not move for summary
judgment against it.23 Rather, relying on El T. Mexican
Restaurants, Inc. v. Bacon,?* AAC argues that Yetiv
was acting on its behalf when he filed the summary
judgment answer. We agree.
The October 17th first amended petition (1) named
Yetiv and AAC as plaintiffs, (2) recited that Yetiv was
“pursuing” AAC’s causes of action, and (3) asserted
some claims belonging to Yetiv individually and others
belonging only to AAC. This is tantamount to Yetiv’s
bringing AAC’s claims in a representative capacity, not
an individual one. When AAC forfeited its privilege to
sue, it retained legal title to its claims,but beneficial
title vested in Yetiv as its sole shareholder; therefore,
he could sue as AAC’s representative. Bacon, 921
S.W.2d at 251.
*18 Because Yetiv sued both individually and
representatively for AAC, he necessarily answered the
summary judgments in both capacities.25 Therefore, it
is as if AAC answered. AAC may thus raise any
challenge preserved in Yetiv’s summary judgment
response.
We overrule Huey’s first argument.
23 See Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d
963, 564 (Tex.1983) (summary judgment may not be
rendered on claim not attacked in motion); Toonen v. United
Servs. Auto. Ass’n, 935 S.W.2d 937, 942 (Tex.App.--
Texarkana 1996, no writ) (error in granting too broad a
summary judgment is waived if not attacked on appeal).
24 921 S.W.2d 247 (Tex.App.--Houston [lst Dist.] 1995,
writ denied).
25 Accordingly, we refer herein to the summary judgment
motions as being against both Yetiv and AAC.
37a
B. Summary Judgment For Huey
Huey moved for a 166a(c) summary judgment?6
against Yetiv and AAC’s section 1983 claims and
claims for tortious interference with contract and
state-constitutional violations on the grounds that (1)
she enjoyed official and qualified immunity; (2) she
enjoyed an absolute privilege while carrying out her
Council duties; (3) she did not violate their rights; (4)
Yetiv and AAC produced no evidence that she kept
them from contracting, that she acted maliciously, or
that she was not privileged or justified; and (5) the
City Charter gave her the right to respond to citizen
complaints.2”7 The trial judge rendered summary
judgment for Huey on “all issues and all parties.”
1. Official Immunity
Huey moved for summary judgment on Yetiv and
AAC’s state-law claims on the ground that she enjoyed
official immunity. Huey is entitled to official immunity
from suit for state-law claims arising out of her
performance of (1) discretionary duties (2) in good
faith and (3) within the scope of her authority.
26 Huey’s motion phrased many of her summary
judgment grounds in terms of Yetiv’s producing “no
evidence” to support his claims, but it was not a no-
evidence motion (civil procedure rule 166a(i)) because it was
filed before the civil procedure rules allowed no-evidence
motions, Huey relied on her own summary judgment
evidence below, and she analyzes the motion as a rule-
166a(c) motion on appeal.
27 Huey’s summary judgment motion also attacked Yetiv
and AAC’s malicious prosecution and abuse of process
claims and their prayer for mental anguish damages.
However, by the time summary judgment was granted, Yetiv
and AAC no longer sought these damages, AAC’s
counterclaim had dropped these claims, and Yetiv admits
that he had abandoned those same claims.
38a
Wadewitz _v. Montgomery, 951 S.W.2d 464, 466
(Tex.1997). It was Huey’s burden to show these three
elements conclusively. Id.
Yetiv and AAC have never disputed that Huey’s acts
were discretionary. Rather, they argue they were not
in Huey’s scope of authority or done in good faith. We
examine Huey’s good faith first.
We agree that fact issues exist whether Huey acted in
good faith. An official acts in good faith if a reasonably
prudent official could have believed her conduct was
lawful in light of clearly established law and the
information known at the time. Thomas v. Collins, 960
S.W.2d 106, 113 (Tex.App.-- Houston [1st Dist.] 1997,
pet. denied). Only if Huey carried her burden did Yetiv
and AAC then have to show no person in Huey’s
position could reasonably have believed the facts
justified her acts. Id.
Huey relied on her own affidavit and that of former
Council member Alfred J. Calloway. The statements in
paragraphs five, nine, 11, 12, and 16 of Huey’s
affidavit and most paragraphs in Calloway’s affidavit--
which stated that Huey acted in good faith, without
malice or intent to harass, and reasonably--are
conclusory or do not set out the detailed, factual
analysis the Supreme Court requires to show objective
good faith. See Wadewitz, 951 S.W.2d at 466-47
(holding expert’s conclusory statement that reasonable
officer could have taken some action did not establish
good faith, when it did not address what reasonable
officer could have believed and did not contain factual
assessment of need for action versus the action’s risk);
see also Rizkallah_ v. Conner, 952 S.W.2d 580, 587
(Tex.App.--Houston [lst Dist.] 1997, no pet.) (holding
summary judgment evidence incompetent if
conclusory and without underlying facts in support).
Compare Bates v. Texas State Technical College, 983
39a
S.W.2d 821, 832-33 (Tex.App.--Waco 1998. pet.
denied) (affidavits, detailing precise bases for decisions
and including specific and readily controvertible facts,
carried movants’ “good faith” burden).
*19 Moreover, Yetiv and AAC’s summary judgment
proof,28 which we must take as true, contradicted
Huey’s version of virtually every nonconclusory fact
asserted in her summary judgment evidence:
8 Some of the proof that Yetiv and AAC’s brief cites was
attached to their petition and not made part, by reference or
by attachment, of their summary judgment proof. Therefore,
we do not consider it here. See, eq., Boeker v. Syptak, 916
S.W.2d 59, 61-62 (Tex.App.--Houston _lst Dist.] 1996, no
writ) (affidavits attached to pleadings, but not to summary
judgment motion, are generally not summary judgment
evidence).
Huey’s Version
1. Huey did not
authorize anyone to
survey or videotape the
AAC apartments.
2. The neighbors denied
that Huey instricted
[sic] them to videotape
the AAC apartments.
1. Huey never directed
Link or those in Link’s
department.
2. Huey never told Yetiv
that she controlled
Link’s actions, because
this was untrue, and
such control would
violiate [sic] the law.
40a
Yetiv and AAC’s Version
Two neighbors told
Yetiv that Huey had
them videotape the AAC
apartments repeatedly,
including after Yetiv
had complained to City
Council and on
television.
1. Huey and her
assistant assured Yetiv
that Link would not
shut down the AAC
apartments because
Link did what Huey
wanted. Link then
withheld permits from
AAC.
2. Link’s department’s
own records regarding
another property (not
Yetiv’s) in Huey’s
district contained the
notation, “JHC OR
CMHH APPROVAL
REQUIRED FOR
PERMITS” and “NO
PMTS WO CMHH OR
JHC APPROVAL,”
which Yetiv interprets
as no permits issued
without Council
member Helen Huey’s
approval.
3. Huey never
instructed anyone not
to issue permits to
AAC.
4. Two of Link’s
employees denied
receiving direct
instructions from Huey,
one denied being order
to write tickets, and
another denied
discussing AAC’s case
with Huey. Link denied
getting orders from
Huey.
1. Huey never
participated in
inspections of Yetiv’s
properties.
2. Huey never directed
anyone to issue
citations concerning
Yetiv’s properties.
4la
3. Two neighbors told
Yetiv Huey had
promised them the AAC
apartments would be
demolished.
4 ~
1. Shortly after Yetiv’s
presentation to Council
and television
appearance, while a
police officer was
investigating a
complaint at the AAC
apartments, the officer
asked twice whether
Yetiv “had a beef with
some Council woman
named ‘Huey’.”
2. Huey’s ofi se made a
“general CURB
ordinance complaint”
(i.e., one to look for any
CURB violations, not
one based on specific
complaints) to Link’s
office on December 4,
3. The complaint that
Huey sent to Link’s
office on December 4,
1996 was one received
from a constituent, not
one invented by Huey’s
office.
1. Huey based her City
Council statement on
Link’s status report,
with which she found
nothing wrong.
42a
1996 for another of
Yetiv’s properties. The
responding investigator
could not recall having
ever before received a
private citizen’s
complaint that was so
general, and he had not
noticed any such
problems during four
inspections in the last
two months. Yetiv and
AAC infer the complaint
was invented, not
genuine.
1. Huey’s Council
statement said “No
action was taken by Mr.
Yetiv to comply with the
[DBO]” and that he did
not submit a cure plan
or request an extension
before the DBO
“expired”; however, he
requested an extension
and submitted a curse
plan to Link—as Link’s
own chronology
attached to Huey’s
2. Huey made the
Statement merely to
respond to Yetiv’s
public accusations.
43a
Council statement
confirmed--and he so
informed Huey.
2. Huey stated that,
“Mr. Yetiv has refused
to complete an
application for an
inspection or to apply
for repair permits.”
However, Yetiv had told
Huey in three letters
that (i) Link could not
decide whether an
inspection should
precede or follow his
posting a cash bond, (ii)
he had contacted an
inspector, but the
inspector could not
proceed because of a
“hold” that Link did not
lift despite earlier
having promised Huey
and Yetiv she would do
so, and (iii) he had tried
to get permits. Yetiv
also informed Huey by
letter that Link’s claim
that he had not
submitted a cure plan
was untrue.
3. Huey stated that
Yetiv’s cash bond was
received on August 23,
1994, but Yetiv had
already informed Huey
that the bond had been
received a day earlier.
1. Huey simply
forwarded any
complaints she received
concerning the AAC
apartments to Link’s
department pursuant
to Huey’s custom.
2. Any Council member
may refer priority
citizen complaints to
Link’s office, and others
did it as often as Huey
did.
Huey did not harass
Yetiv.
After promising two
constituents that AAC
would be demolished,
and after Yetiv’s
criticism in Council and
on television, Huey’s
office called in an
unusually “general”
CURB complaint (i.e.,
one to look for any
CURB violations, not
one based on specific
complaints), she had
neighbors videotape the
AAC apartments, and
an officer sent to
investigate the AAC
apartments asked Yetiv
whether he had a “beef”
with Huey.
(See above evidence
Yetiv and AAC
submitted).
45a
Therefore, a material dispute exists whether the facts
on which Huey relied to show good faith were
accurate, and summary judgment was improper. See
City of Dallas _v. Aguirre, 977 S.W.2d 862, 864
(Tex.App.--Dallas 1998, no pet.).29 Moreover, taking
Yetiv and AAC’s proof as true, no reasonable City
Council member could have believed that (1)
knowingly reading inaccurate Statements to City
Council and (2) controlling Link’s department’s actions
were justified or in good faith.
We sustain Yetiv and AAC’s challenge and hold that
summary judgment could not have been granted on
their state-law claims against Huey on the ground
that she enjoyed official immunity.
2. “Absolute Privilege” While Performing Council
Duties
Huey moved for summary judgment against all Yetiv
and AAC’s claims on the ground that she enjoyed an
absolute privilege while acting within the scope of her
Council responsibilities. However, viewed in the
required light, Yetiv’s evidence indicated Huey
knowingly misstated the facts of AAC’s case to Council
and controlled Link’s actions, the second of which
Huey’s own affidavit admitted would be illegal.
Assuming without deciding that such an absolute
privilege could exist for actions in the scope of Council
29 Accord Dalrymple v. University of Texas Sys., 949
S.W.2d_ 395, 402 (Tex.App.--Austin 1997) (holding
nonmovant seeking to defeat good- faith summary judgment
must show no reasonable official in same position could
have thought the nonmovant’s version of facts justified the
action), rev’d in part on other grounds, 42 Tex. Sup.Ct. J.
815 (Tex. June 24, 1999): City of San Antonio v. Garcia, 974
S.W.2d 756, 758-59 (Tex.App.--San Antonio 1998, no pet.);
Martinez v. Mikel, 960 S.W.2d 158, 160-61 (Tex.App.--San
Antonio 1997, no pet.).
46a
duties, we hold that a fact issue exists whether Huey
acted within that scope. Accordingly, we sustain Yetiv
and AAC’s challenge and hold that summary judgment
could not have been granted for Huey based on this
alleged privilege.
3. Claims for Violations of the State Constitution
Because the defenses of official immunity and
“absolute Council privilege,” which we have held are
not meritorious, were Huey’s only summary judgment
grounds attacking Yetiv and AAC’s state constitutional
claims, we sustain the challenge to the summary
judgment rendered on those claims against Huey.
4. Tortious Interference with Prospective
Contracts
Yetiv and AAC claimed Huey caused repair and
building permits to be withheld, resulting in a delay in
renting the AAC apartments and a corresponding loss
in income. The elements of a cause of action for
tortious interference with a prospective contract are:
(1) there was a reasonable probability the plaintiff
would have entered into a contractual relationship; (2)
the defendant’s malicious and intentional act
prevented the relationship from occurring, doing harm
to the plaintiff; (3) the defendant lacked privilege or
justification; and (4) as a result, the plaintiff suffered
actual damage or loss. Winston v. American Med. Int'l,
Inc., 930 S.W.2d 945, 953 (Tex.App.--Houston [1st
Dist.] 1996, writ denied). Huey moved for summary
judgment against Yetiv and AAC’s claim for tortious
interference with prospective contracts on the grounds
that (1) she was justified because the City Charter
gave her the right to respond to citizen complaints and
47a
(2) Yetiv and AAC produced no evidence that she kept
them from contracting or that she acted maliciously.30
*20 A reasonable inference from Yetiv and AAC’s
Summary judgment proof is that Huey twice ordered
questionable investigations of Yetiv’s property, rather
than simply passing along citizen complaints, after
Yetiv criticized her publicly. Therefore, Yetiv and AAC
raised a fact issue on whether Huey’s actions were
justified. Additionally, we have already held that Yetiv
and AAC raised fact issues on almost all Huey’s
evidence of her actions, including those actions that
we must infer delayed permit issuance or were taken
to do so. We may not consider Huey’s and Calloway’s
conclusory statements that Huey acted without
malice, in good faith, or reasonably. Finally, Huey’s
motion did not dispute, and she presented no
summary judgment evidence refuting, Yetiv and AAC’s
allegation that AAC lost rental income because of the
delay in permit issuance.
We sustain Yetiv and AAC’s challenge to the summary
judgment rendered on their claim against Huey for
tortious interference with prospective contracts.
S. Qualified Immunity
Yetiv and AAC alleged Huey was liable under section
1983 for violations of their rights under the First
(retaliation for public criticism), Fourth (unreasonable
search), Fifth (takings by causing permit withholding),
and Fourteenth (due process) Amendments. U.S.
Const. amend. I, IV, V, XIV. Huey’s summary
30 Huey’s argument that Yetiv and AAC produced no
evidence of these elements is misplaced, as it was Huey’s
burden, not Yetiv’s, conclusively to negate these elements.
See Science Spectrum, Inc., 941 S.W.2d at 911. Nonetheless,
we review her summary judgment evidence to see if she
conclusively negated these elements.
48a
judgment motion argued only that (1) Yetiv and AAC
produced no evidence she did any of the allegedly
unconstitutional acts and (2) she was entitled to
qualified immunity. Huey was entitled to qualified
immunity insofar as her conduct did not violate
clearly established rights of which a reasonable person
would have known. Behrens v. Pelletier, 516 U.S. 299,
305, 116 S.Ct. 834, 838, 133 L.Ed.2d 773 (1996).
i. Alleged First Amendment Violations
Yetiv alleged Huey violated the First Amendment by
retaliating against him (1) for criticizing her, Link, and
CURB’s allegedly discriminatory enforcement on
television or to Council; (2) for criticizing a secret
settlement involving the Leaths’s apartments in Huey’s
district; (3) for revealing Huey’s alleged perjury in the
Leaths’s case to the City attorney’s office and another
Council member; and (4) for contributing to a
newspaper article on that settlement. A state, state
agency, or political subdivision cannot retaliate
against a citizen who exercises his right of free speech
on a matter of public concern. A claimant must show
at least that a substantial and motivating factor for
the complained-of action resulted from his exercise of
free speech. Levine v. Maverick County Water Control &
Improvement _ Dist. No. 1, 884 S.W.2d 790, 795
(Tex.App.--San Antonio 1994, writ denied).
Yetiv and AAC’s evidence, viewed in the appropriate
light, showed that, after Yetiv made these statements,
(1) Huey sent two complaints--one “general” and one
for unauthorized repair work--about Yetiv’s property
to Link’s office under circumstances that could imply
Huey made them directly or that they were unusual or
unwarranted and (2) two neighbors, to whom Huey
had promised AAC would be demolished, told Yetiv
that Huey had them videotape AAC for her. Yetiv and
AAC’s evidence was also that, at the time of one
49a
inspection, they were not performing the unauthorized
repairs of which they were accused. Therefore, Yetiv
and AAC’s evidence raised a fact issue on whether
Huey retaliated against them for Yetiv’s statements.
For the same reason, Huey was not entitled to
Summary judgment on the ground of qualified
immunity.
ti. Alleged Fourth Amendment Violations
*21 Yetiv and AAC also alleged Huey’s actions were
unreasonable searches and invasions of his privacy
interest in violation of the Fourth Amendment. Huey’s
summary judgment motion argued only that (1) there
was no evidence that she caused any inspections or
surveillance of Yetiv’s property and (2) she was
entitled to qualified immunity.
We hold the same evidence discussed immediately
above raises a fact issue on each of Huey’s summary
judgment grounds, including immunity.
iii. Alleged Fifth and Fourteenth Amendment
Violations
Yetiv and AAC also alleged that Huey violated due
process, which resulted in an unconstitutional taking,
by causing an arbitrary delay in the issuance of
permits to AAC and a consequential loss of rental
income. Huey’s Summary judgment motion argued
only that (1) her actions could not deny due process or
cause unconstitutional takings because she acted in
the scope of her Council duties; (2) Yetiv and AAC did
not produce evidence that she violated their due
process rights or that, if she did, her acts caused the
lost rental income; and (3) she was entitled to qualified
immunity.
re
50a
Viewed in the proper light, Yetiv and AAC’s evidence
was that Huey admitted she could control Link, which
Huey also admitted would be illegal, ie., outside her
Council duties; Link placed holds on the issuance of
permits to AAC, even though Link had promised to lift
at least one of those holds; Link’s records contained
notations that might indicate Huey controlled permit
issuance for at least one other low-income apartment
owner’s complex in her district; Huey may have
knowingly made incorrect statements to Council about
Yetiv’s case; and Huey promised two constituents that
the AAC apartments would be demolished, not
rehabilitated.
Substantive due process bars arbitrary governmental
actions. Levine, 884 S.W.2d at 795. The denial of
permits would be arbitrary if influenced by Huey for
the retaliatory or political reasons alleged, rather than
on the applications’ merits. Therefore, Yetiv and AAC’s
evidence raised a fact issue on each of Huey’s
summary judgment grounds concerning Fifth and
Fourteenth Amendment violations, including
immunity.
We sustain Yetiv and AAC’s challenge to the summary
judgment rendered on their section 1983 claims
against Huey.
5. Conclusion
We hold summary judgment was improperly rendered
against each of Yetiv and AAC’s claims against Huey.
C. Summary Judgment for Link
Link moved for a 166a(c) summary judgment against
Yetiv and AAC’s section 1983 claims and claims for
tortious interference with contract and violations of
the state constitution on the grounds that (1) the
CTL PTET
5la
Statute of limitations barred all claims; (2) she enjoyed
official and qualified immunity; (2) she did not violate
their rights; and (3) Yetiv admitted there were no
damages or contracts with which she could interfere.
The trial judge denied summary judgment against the
section 1983 claims and on the limitations defense,
but granted summary judgment for Link on all state-
law claims. We address neither the denial of summary
judgment on the section 1983 claims, as these were
nonsuited before trial, nor on limitations, as Link does
not challenge this ruling on appeal. Valores
Corporativos, S.A. v. McClane Co., 945 S.W.2d 160.
161 n. 3 (Tex.App.--San Antonio 1997, writ denied)
(declining to address limitations ground from
Summary judgment motion, on which trial judge
expressly declined to rule, when no one challenged on
appeal the judge’s refusal to rule on limitations).
1. Section 101.106
*22 Link initially argues we must affirm the summary
judgment in her favor because Yetiv and AAC obtained
a final judgment against the City.
The Texas Tort Claims Act (TTCA) provides that a
‘Judgment in an action ... under this chapter [the
TTCA] bars any action involving the same subject
matter by the claimant against the employee of the
governmental unit whose act or omission gave rise to
the claim. Tex. Civ. Prac. & Rem.Code Ann. § 101.106
(Vernon 1997). This was not a ground for summary
judgment; therefore, we cannot affirm on it. Kassen v.
Hatley, 887 S.W.2d 4, 13 (Tex.1994).
We overrule Link’s first challenge.
52a
2. Official Immunity
Link moved for summary judgment on all Yetiv and
AAC’s state-law claims on the ground that she enjoyed
official immunity. We follow the test set forth in City of
Lancaster v. Chambers to determine whether Link
carried her burden. See 883 S.W.2d at 653.
Yetiv and AAC have never disputed that Link’s acts
were discretionary. Rather, they argue they were not
in Link’s scope of authority or done in good faith. We
examine Link’s good faith first.
We hold that fact issues exist whether Link acted in
good faith, as shown in the comparison of Link’s
evidence with that of Yetiv and AAC:
Link’s Version
At the April 5, 1994
meeting with Yetiv,
Link told him he
needed to post a cash
bond, sign a cash-bond
agreement, submit cure
plans for all nine
condemned buildings,
get an occupancy
inspection report, and
do work per City
requirements before the
DBO could be
extended.
1. Yetiv then completed
an extension
application, which Link
approved subject to
Yetiv’s submitting a
repair timeline for all
nine buildings and his
executing a cash-bond
agreement.
2. Yetiv posted the cash
bond, but refused to
sign the cash-bond
agreement.
53a
Yetiv and ACC’s Version
At this meeting, Link
told Yetiv that an
extension application
and cure plan for four
of the buildings were
the sole requirements
for the DBO’s
extension.
1. Yetiv timely
submitted both the
extension request and
the cure plan on the
four buildings and
requested a meeting to
discuss the cure plan.
He advised Link he
would soon seek
permits.
2. On May 18, 1994,
Link instructed Yetiv to
submit revised cure
plans on the four
buildings, agreeing
permits would issue on
the revised plans’
receipt.
3. Yetiv never
submitted detailed cure
plans or timelines.
4. Therefore, Link
postponed extending
the DBO.
3. Yetiv submitted the
revised cure plans two
days later. Link did not
respond to yetiv’s two
requests to meet before
the DBO expired until
June 8, 1994, two days
after it expired.
4. At that meeting, Link
said Yetiv’s extension
request and revised
cure plans were in
order, but she added a
new requirement that
Yetiv get an occupancy
inspection.
5. Yetiv finally reached
the occupancy
inspector, Inspector
Balay, on June 14,
1994. Inspector Balay
could not inspect until
Link authorized a DBO
extension, but Link
would not authorize the
extension until Balay
did the inspection. Link
did not respond to
Yetiv’s requests about
how to proceed.
6. Link sent Inspector
London to the AAC
apartments on June
22, 1994. Yetiv thought
this was the required
occupancy inspection
and wrote Link to
advise her.
7. Link responded on
July 5, 1994, adding
new requirements of (i)
posting a $2,200 bond
and (li) signing a bond
agreement.
8. The bond agreement
contained an
affirmation that an
occupancy inspection
had already been
completed, so Yetiv
could not sign it until
he had an occupancy
inspection, which Link
would not authorize.
Yetiv wrote Link, asking
again for approval of an
occupancy inspection,
and advising that he
would sign the bond
agreement once the
inspection was done.
9. Link then granted
only one 210-day
extension during which
all nine buildings had
to be completed,
although Yetiv had
previously told Link it
was impossible to
complete all nine in
that time.
10. Link, Yetiv, and
Huey agreed on August
22, 1994 that Link
would remove the hold
so that the AAC
apartments could get
an occupancy
inspection. Yetiv
requested an inspection
from Inspector Balay,
but Link had not
removed the hold, and
the inspector could not
comply. In Yetiv’s
presence, Inspector
Balay left two messages
for Link that Yetiv was
seeking an inspection.
11. On October 4,
1994, Link claimed that
Inspector Balay had
said Yetiv had not
scheduled an
occupancy inspection,
but Yetiv had, and Link
had received two
messages from Balay to
that effect.
12. After the City sued
Yetiv and AAC for
repairing without
permits, the City’s plan
checker, Don
Tomlinson, approved
Yetiv’s permit
application. When
Link’s department
refused to issue the
permits, Yetiv and AAC
went to court. The
parties entered into an
agreed order compelling
issuance of permits on
four buildings and on
future buildings for
which Yetiv submitted
substantially similar
applications.
13. Nine months later,
Link’s department
again placed a hold on
the AAC apartments,
and permits stopped
issuing. Link wanted
another DBO extension
request and cure plan.
14. Yetiv then applied
for permits on four
different AAC
apartment buildings,
which plan checker
Tomlinson approved,
but which could not be
issued because of the
hold. Yetiv submitted
the requested cure
plans, but no permits
were issued until he
went to court over a
month later.
Link afforded Yetiv the
same opportunities as
other citizens who have
requested a DBO
extension or delay of
DBO enforcement
actions.
1. Link did not return
many of Yetiv’s calls,
faxes, or letters.
2. Link alleged
Inspector London found
five CURB violations,
but the alleged
violations did not exist,
and Link never followed
through with a
threatened
reinspection. Yetiv
infers that the five
alleged violations were
created to discriminate
against him.
3. Link told Huey
several untruths,
including that (i) Yetiv
_ had not submitted a
cure plan; (ii) Link had
no power to granta
DBO extension,
contrary to what she
had always told Yetiv;
(iu) Yetiv was unwilling
to pay the cash bond,
when Link’s office had ~
received it the day
before; and (iv) Link
had agreed to allow
Yetiv to sign the cash-
~ = .
SEE
The AAC apartment
buildings were being
reconstructed without
permits or City
approved construction
plans.
1. Compliance officers
conducted the mass
inspection of the AAC
apartments on October
27, 1994 pursuant toa
search warrant.
bond agreement after
the occupancy
inspection, which
contradicted what she
had told Yetiv.
1. Yetiv was only
shoring and cleaning
up the AAC apartment
buildings, not repairing
or building without
permits.
2. Yetiv advised Link
three times that he was
only temporarily
repairing roof leaks, to
which Link never
objected.
1. Fifteen days after
criticizing Link on
television and to City
Council, and one day
after criticizing Link at
a public meeting,
inspectors from Link’s
department appeared at
the AAC apartments to
videotape it, although
Yetiv had earlier
refused Link access to
inspect. The same day,
an asbestos inspector
came to investigate a
complaint by Link that
the apartments were
60a
being gutted without
required notification
and asbestos-
containing material was
being dumped in the
street. However, the
asbestos inspector
determined that the
e complaint was
os unfounded.
2 Link neither 2. The next day,
requested the search employees from Link’s
warrant nor interfered departments conducted
with the inspectors’ a mass inspection of
duties. the AAC apartments.
The search warrant
affidavit asserted that
all nine buildings were
being repaired without
permits; however,
nothing was being done
on six buildings, and
only cleaning was being
done on the remaining
three. Moreover, the
inspectors searched
‘buildings not covered
by the warrant.
Although the inspectors
issued 23 citations, the
inspectors never
showed for the court
hearing, and the
citations were
_ dismissed. Yetiv infers
Link ordered the
inspections in
retaliation for his
3. Link did not request,
initiate, or procure the
issuance of citations on
AAC at that time.
4. Inspection personnel,
not assistant director
Link, are responsible
for determining
whether a violation
exists and related
matters. The inspectors
issue any citations.
All actions Link took
concerning AAC were
done because Yetiv did
not comply with the
DBO and extension
requirements.
repeated public
criticism of her.
3. The report that Link
prepared for Huey to
read in response to
Yetiv’s statement to
Council contained the
alleged inaccuracies
discussed above with
regard to the summary
judgment for Huey.
(See above evidence
submitted by Yetiv and
AAC.)
62a
Furthermore, we cannot consider Link’s statements
that her actions regarding the AAC apartments were
done in accordance with her duties and in the scope of
her employment, in good faith, with honesty, without
malice or fraudulent intent, and with lawful purpose
because they are conclusory or do not set out the
detailed, factual analysis the Supreme Court requires
to show objective good faith. See Wadewitz, 951
S.W.2d at 466-47. We hold Yetiv and AAC raised a
material dispute whether the facts on which Link
relied to show good faith were accurate. See Aquirre,
977 S.W.2d at 864. Moreover, taking Yetiv and AAC’s
proof as true and drawing all inferences in their favor,
no reasonable official in Link’s position could have
believed that (1) knowingly preparing inaccurate
reports for City Council and (2) causing baseless
inspections or ordering ones for retaliatory reasons
was justified or in good faith.
We hold summary judgment was improperly rendered
for Link on official immunity grounds.
3. Claims for Violations of the State Constitution
Yetiv and AAC sought a declaratory judgment for
takings and due course of law violations under the
Texas Constitution caused by improperly withholding
permits. See Tex. Const. art. I, § § 17, 19. Link’s
summary judgment motion asserted, “All of Link’s
actions or involvement with Yetiv were done within the
scope of her employment. All her actions toward Yetiv
were lawful and were in good faith.... Yetiv has no
material issue of fact that Link violated any of his
federal
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