Mike Jabary v. City of Allen and John Does 1-5

• Court: Court of Appeals of Texas
• Decided: July 3, 2014
• Docket: 05-12-01608-CV
• Status: Published

Opinion

Affirmed and Opinion Filed July 3, 2014

Court of Appeals S In The

Fifth District of Texas at Dallas No. 05-12-01608-CV

MIKE JABARY, Appellant V. CITY OF ALLEN, Appellee

On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-01635-2012

MEMORANDUM OPINION Before Justices Bridges, Francis, and Lang-Miers Opinion by Justice Francis Mike Jabary appeals the trial court’s summary judgment in favor of the City of Allen on

its plea to the jurisdiction. In five issues, Jabary contends the trial court erred by granting

summary judgment because the City did not tell Jabary he had a right to appeal or had to exhaust

his administrative remedies, the trial court should have granted additional time for discovery, and

fact issues preclude summary judgment.1 We affirm the trial court’s judgment.

In early January 2009, Jabary applied for a commercial certificate of occupancy for a

restaurant in Allen. About a week later, he submitted an application for a building permit and

certificate of occupancy stating the building would be used for a restaurant and hookah bar. On

January 29, 2009 Jabary was issued a certificate of occupancy for the building “for use as a

1 During oral argument, Jabary withdrew his first issue regarding whether the City could claim sovereign immunity from takings claims. RESTAURANT (NO DRIVE-IN OR THROUGH).” When it later became apparent to City

officials that Jabary’s business was primarily a hookah bar and was not capable of being used as

a restaurant, chief building official Bret McCullough issued a “Notice of Violation” tag, stating

Jabary was operating the business in violation of the certificate of occupancy because the

“establishment does not meet criteria for restaurant use.” The notice, dated June 9, 2010,

effectively revoked Jabary’s certificate of occupancy. The following day, the Allen Police

Department issued a written statement that the certificate of occupancy had been revoked after

“City staff determined by the lack of food, the unsanitary conditions of the food preparatory area,

and the out of date food products that were not fit for human consumption [that] Jabary was not

operating as a restaurant.”

Jabary sued the City in federal and state courts. In his state lawsuit, he alleged both

private and public takings (as well as an official oppression claim which he later abandoned).

The City filed a motion for summary judgment on the ground that, because Jabary had not

exhausted his administrative remedies, his claim was not ripe. In response, Jabary argued he was

not required to exhaust his remedies because he did not get proper notice and any appeal would

be futile. After the trial court granted summary judgment in favor of the City, Jabary filed this

appeal.

Because issue four is dispositive, we begin with the question of whether Jabary was

required to exhaust his administrative remedies before proceeding with the merits of his case.

Although the Texas Constitution waives immunity for suits brought under the takings

clause, this does not mean that a constitutional suit may be brought in every instance. City of

Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011). The legislature’s “broad authority to

prescribe compensatory remedies for takings is well-established, so long as those methods

comply with due process and other constitutional requirements.” Id. When the legislature

–2– creates such a statutory procedure, a party may seek recourse by filing a constitutional suit only

where the statutory procedure proves inadequate. Id.; see Mayhew v. Town of Sunnyvale, 964

S.W.2d 922, 929 (Tex. 1998) (“[I]n order for a regulatory takings claim to be ripe, there must be

a final decision regarding the application of the regulations to the property at issue.”); see also

Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194 (1985) (“The

Fifth Amendment does not proscribe the taking of property; it proscribes taking without just

compensation.”). When a provision or procedure exists for compensation or recourse, a

constitutional claim is necessarily premature. See VSC, LLC, 347 S.W.3d at 236 (citing

Williamson Cnty., 473 U.S. at 194–95). Thus, as a general rule, when a party asserts a takings

claim based on an allegedly improper administrative determination, he must first appeal that

determination and assert his takings claim in that proceeding. Patel v. City of Everman, 361

S.W.3d 600, 601 (Tex. 2012) (per curiam). A party may forgo the administrative determination,

however, if an exception, such as futility, is established. See Mayhew, 964 S.W.2d at 929,

931−32.

The City moved for summary judgment, asserting a plea to the jurisdiction. Specifically,

the City argued the trial court lacked subject matter jurisdiction over Jabary’s claims because he

failed to appeal the revocation of his certificate of occupancy to the City board of adjustment

and, as a result, Jabary’s claims were not ripe.

In support of its motion, the City filed copies of the City’s municipal code and the Allen

land development code, along with the affidavits of city employees Bo Bass and Les Folse, and

Jabary. Section 1.08 of the municipal code provides a certificate of occupancy is required to

conduct business within a building. ALLEN, TEX., CODE § 1.08.1. It also provides that the City’s

chief building official “may, in writing, suspend or revoke a certificate of occupancy” when it is

determined that the structure or any portion of the same “is in violation of any ordinance or

–3– regulation or any provision of this Code or the building codes . . ..” Id. § 1.08.9. Section 2.02.1,

in conformity with the local government code, establishes the five-member board of adjustment

and provides that a party affected by “any decision of the chief building officer” may file an

appeal within fifteen days of the date of the decision with the board. Id. § 2.02.1; TEX. LOC.

GOV’T CODE ANN. § 211.008−.010 (West 2008). The municipal code also provides that, during

the pending appeal, “all proceedings in furtherance of the action appealed from” are stayed.

ALLEN, TEX., CODE § 2.02.1.

Bo Bass, the director of community development, is responsible for administering (1) the

City department that handles planning and development functions, (2) the City’s land

development code, including the zoning code provisions, and (3) the City department overseeing

City codes applicable to health and building code requirements, including those applicable to

restaurants. According to Bass, Jabary was issued a certificate of occupancy for a restaurant;

thus, the “principal or primary or most important or most consequential aspect of the business

operated by [Jabary] must be a restaurant, instead of some other use.” Bass stated Jabary’s

principal use was a hookah lounge where the primary “business operation was the selling of

tobacco or smoking products which he then allowed his patrons to smoke or consume on the

premises using a hookah.” While Jabary’s lounge had a retail sales counter, it did not have

working sinks and there was “little or no food on the premises that was fit for consumption.”

Based on this and other information, Bass said it appeared Jabary did not have an operating

restaurant and “was not capable of having an operational restaurant meeting health code

requirements for a restaurant.” Bass also discussed the appeals process available to a person

whose certificate of occupancy is revoked and testified Jabary “has never appealed, nor has any

other person acting on behalf of Mr. Jabary appealed the revocation of his Certificate of

Occupancy.”

–4– Les Folse, the City code inspection supervisor, said he was involved in inspections of

businesses to determine compliance with City code requirements since February 2006. Folse

wrote out the information on Jabary’s notice of violation, but it was signed and issued by

McCullough, the chief building official. According to Folse, he and McCullough were both

present at the time and handed the notice to Jabary at his place of business on June 9, 2010.

In his affidavit, Jabary claimed he sold food, drinks, and tobacco products as “permitted

by its Certificate of Occupancy” but conceded his business “operated as a hookah bar since its

inception.”

This evidence establishes that, although Jabary was issued a certificate of occupancy for a

restaurant, he was operating a hookah bar. It also shows Jabary was handed the notice of the

revocation on June 9 but did not file an appeal with the board of adjustment within fifteen days

of that date. Although Jabary filed a response to the motion, he did not offer any evidence to

refute what the City offered nor did he provide evidence or any argument as to why an appeal to

the board of adjustment would have been futile. Because the City conclusively established

Jabary failed to exhaust his administrative remedies, the trial court did not err by granting

summary judgment in the City’s favor.

In reaching this conclusion, we reject Jabary’s argument he was denied discovery in the

trial court that would help him establish futility. In his appellate brief, Jabary refers to a single

1981 federal case but does not analyze that case or apply the law to the facts of his case. He does

not address the standard of review or state law on the issue and we are not responsible for doing

the legal research. Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex.

App―Dallas 2010, no pet.). Under these circumstances, we conclude Jabary has failed to

properly brief this issue on appeal. See TEX. R. APP. P. 38.8(i).

–5– Furthermore, during the hearing on the motion for continuance, Jabary represented to the

trial court that he had “about 30 requests for production,” including the depositions of the mayor,

chief building officer, the chief of planning and development, and several “high-ranking city

officials” that could be tied directly to the futility argument, yet he made no attempt or argument

to show how any of these depositions would establish futility. He did not claim any of those

individuals whose depositions he sought was on the board of adjustment or had any influence

over the board, and in fact, Jabary conceded as much to the trial court. In addition, Jabary did

not file a discovery request about the board of adjustment. When asked by the trial court, Jabary

claimed that, even without a continuance, he had documentation in his possession that indicated

the finality of the decision and established his futility exception; however, he does not cite us to

that evidence. Finally, when the trial court noted that futility needed to be more than “a foregone

conclusion” or seeing “the handwriting on the wall,” Jabary argued, without any supporting

evidence, that an appeal was futile because the board of adjustment had no authority to change

the result. We note, however, the Allen municipal code provides that, when an appeal is filed,

The board shall decide the appeal within 90 days after placement on its agenda, after which time the request shall be deemed approved. The board may reverse or affirm in whole or in part or modify the order, requirement, decision, or determination from which an appeal is taken and make the correct order, requirement, decision or determination.

Contrary to Jabary’s assertions, the plain language of the code indicates the board is vested with

the authority to make the “correct” decision, including reversing a previous order, decision, or

determination, including the revocation of a certificate of occupancy. See also TEX. LOC. GOV’T

CODE ANN. § 211.009. For these reasons, we conclude this argument lacks merit.

We likewise reject Jabary’s argument in his second issue that the “lack of post-

deprivation process triggers [the] exhaustion exception.” Under this argument, Jabary claims he

was not required to file an appeal with the board of adjustments because no one told him he

–6– could appeal. We first note that Jabary has waived this issue because he did not raise it below.

See Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 611 (Tex. 2012); In re B.N.L.-B., 375

S.W.3d 557, 564 (Tex. App―Dallas 2012, no pet.). Furthermore, both the United State Supreme

Court and the Texas Supreme Court have considered and rejected similar arguments. See City of

West Covina v. Perkins, 525 U.S. 234, 241 (1999) (“Once the property owner is informed that

his property has been seized, he can turn to these public sources to learn about the remedial

procedures available to him. The City need not take other steps to inform him of his options.”);

VSC, LLC, 347 S.W.3d at 238−39 (“The Legislature provided a statutory remedy for the return

of the property that was easily discoverable from public sources.”). Here, the City gave Jabary

notice of the revocation and the City municipal code provided a statutory remedy that was easily

discoverable from public sources. See TEX. LOC. GOV’T CODE ANN. § 211.008−.011; ALLEN,

TEX., CODE § 2.02.1. The City was under no duty to invite Jabary to appeal to the board of

adjustment. See VSC, LLC, 347 S.W.3d at 239. We overrule Jabary’s second and fourth issues.

In light of our disposition of issues two and four, we need not address Jabary’s remaining issues.

See TEX. R. APP. P. 47.4.

We affirm the trial court’s summary judgment.

121605F.P05 /Molly Francis/ MOLLY FRANCIS JUSTICE

–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MIKE JABARY, Appellant On Appeal from the 219th Judicial District Court, Collin County, Texas No. 05-12-01608-CV V. Trial Court Cause No. 219-01635-2012. Opinion delivered by Justice Francis, CITY OF ALLEN, Appellee Justices Bridges and Lang-Miers participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee CITY OF ALLEN recover its costs of this appeal from appellant MIKE JABARY.

Judgment entered July 3, 2014

–8–