Mostafa Aram Azadpour v. City of Grapevine, Bruno Richard Rumbelow, Gene Tignor, and Does 1-49 ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00323-CV
MOSTAFA ARAM AZADPOUR APPELLANT
V.
CITY OF GRAPEVINE, BRUNO APPELLEES
RICHARD RUMBELOW, GENE
TIGNOR, AND DOES 1-49
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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
In three issues, Appellant Mostafa Aram Azadpour, who appeared pro se
in the trial court and appears pro se on appeal, appeals from the trial court order
granting the plea to the jurisdiction filed by Appellees City of Grapevine (the City),
1
See Tex. R. App. P. 47.4.
Bruno Richard Rumbelow, Gene Tignor, and Does 1-49. We will affirm in part
and reverse and remand in part.
II. BACKGROUND
Azadpour filed suit against Appellees in the 236th District Court of Tarrant
County after the City cited and fined Azadpour for violating a city ordinance
concerning the height of grass or weeds growing on property in a residential
neighborhood in the City. The City’s Ordinance 12-111 (the Ordinance) provides
that a property owner who fails to cut or remove grass or weeds taller than six
inches within ten days after receiving notification from the City that the property is
in violation of the Ordinance must pay the cost incurred by the City to abate the
Ordinance violation. Grapevine, Tex., Code of Ordinances ch. 12, art. VI, § 12-
111 (1979). The City’s Code of Ordinances also provides that a person who
violates the Ordinance is guilty of a misdemeanor and can be fined up to $2,000
in addition to the cost of abatement. Id. § 12-98 (1979). Azadpour’s pleadings
alleged that he found a paper notice, indicating that he had violated the
Ordinance, taped to the glass next to the main entrance to his house. The City
assessed a $2,000 fine against Azadpour for violating the Ordinance; the fine
was later reduced to $500.
Azadpour’s suit against the City, Rumbelow (individually and in his official
capacity as City Manager and Officer for Public Information Act for the City),
Tignor (individually and in his official capacity as a code enforcement official for
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the City),2 and Does 1-49 (who represent members of the City government)3
sought the following relief:
29. Pursuant to a bench-trial, Plaintiff seeks a temporary
injunction issued against Defendant-Rumbelow to enjoin him and all
those within the City Government for the City of Grapevine over
whom Defendant-Rumbelow has authority to enforce the said City
Ordinance 12-111 against the Plaintiff till such time [as] the Court
has determined whether or not the said City Ordinance 12-111 is
vague or not and what correction(s), if any, is needed to rectify the
said City Ordinance 12-111.
30. Plaintiff seeks a declaratory judgment stating the said City
Ordinance 12-111 is vague.
31. Upon the issuance of the declaratory judgment[,] Plaintiff
seeks the Court, within a time-line and procedure the Court may find
appropriate and applicable, to issue a writ of mandamus directing
the Defendant-Rumbelow (as the City Manager) to correct
ambiguities in the said City Ordinance of 12-111 and to draw an
amendment to the said Ordinance of 12-111 and to present such an
amendment to the City Council for the City of Grapevine for voting
and adoption.
32. Plaintiff seeks a permanent injunction against Defendant
Gene Tignor prohibiting his entrance into my property when he does
not have my written consent to do so, or, otherwise he has a legal
authority to do so.
33. Plaintiff seeks a writ of mandamus directing the Officer for
Public Information Act for the City of Grapevine, Defendant Bruno
Richard Rumbelow, to make available to Plaintiff [the] whole and
unredacted record responsive to Plaintiff’s record request dated
June 28, 2013[,] which was received by the said Officer on-or-about
July 01, 2013.
2
Tignor’s handwritten name was at the bottom of the notice that Azadpour
received regarding his violation of the Ordinance.
3
Azadpour does not challenge on appeal the trial court’s granting of
Appellees’ plea to the jurisdiction as to Does 1–49.
3
Appellees filed a plea to the jurisdiction and general denial. Azadpour
responded to Appellees’ plea to the jurisdiction, arguing that the City had waived
immunity because he is not claiming monetary damages. After a hearing, which
was not recorded, the Honorable Judge Dixon W. Holman (Senior Justice,
Retired; substitute judge sitting by assignment) granted Appellees’ plea to the
jurisdiction and dismissed Appellees from the case with prejudice to refiling suit
against them. Azadpour perfected this appeal and raises three issues.
III. STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat
a cause of action based on lack of subject-matter jurisdiction without regard to
the merits of the claim. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554
(Tex. 2000). The plaintiff bears the burden of alleging facts affirmatively showing
that the trial court has subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When a plea to the jurisdiction
challenges the pleadings, we determine if the pleader alleged facts that
affirmatively demonstrate the court’s jurisdiction to hear the case. City of El Paso
v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). When reviewing a trial court’s
order dismissing a case for lack of jurisdiction, we liberally construe the plaintiff’s
pleadings in favor of jurisdiction, and we look to the pleader’s intent. State v.
Holland, 221 S.W.3d 639, 643 (Tex. 2007).
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IV. TRIAL COURT DID NOT ERR BY GRANTING APPELLEES’ PLEA TO THE
JURISDICTION AS TO THE CITY ON AZADPOUR’S REQUEST FOR A DECLARATORY
JUDGMENT
In his first issue, Azadpour argues that the trial court erred by granting
Appellees’ plea to the jurisdiction on his declaratory judgment claim. Azadpour
argues that if he did not plead sufficient jurisdictional facts, he should be allowed
the opportunity to amend his pleadings.
The law is well-settled that generally a court exercising equitable
jurisdiction in a suit (as opposed to criminal jurisdiction) has no jurisdiction to
render naked declarations of rights, status, or other legal relationships arising
under a penal statute or ordinance. See, e.g., State v. Morales, 869 S.W.2d 941,
945 (Tex. 1994) (holding that trial court exercising equitable jurisdiction in civil
declaratory judgment action did not have jurisdiction to declare penal code
section unconstitutional); City of La Marque v. Braskey, 216 S.W.3d 861, 863
(Tex. App.—Houston [1st Dist.] 2007, pet. denied) (holding that trial court
exercising equitable jurisdiction in civil declaratory judgment action did not have
jurisdiction to declare penal ordinance inapplicable to plaintiff or enjoin its
enforcement); Wild Rose Rescue Ranch v. City of Whitehouse, 373 S.W.3d 211,
218 (Tex. App.—Tyler 2012, no pet.) (holding that trial court exercising equitable
jurisdiction in civil declaratory judgment action did not have jurisdiction to declare
ordinance unconstitutional). An exception to this general rule exists if the plaintiff
establishes both that the penal statute or ordinance (1) is unconstitutional and (2)
threatens irreparable injury to property rights. Morales, 869 S.W.2d at 942. If a
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party fails to satisfy both of these prongs, then a court acting in equity lacks
jurisdiction over the cause. See Passel v. Fort Worth Indep. Sch. Dist., 440
S.W.2d 61, 63 (Tex. 1969); Braskey, 216 S.W.3d at 863 (holding that because
Braskey failed to establish that the ordinance threatened irreparable injury to
property rights, the trial court acting in equity lacked jurisdiction, and the
appellate court need not address the first prong). That is, if questions of
constitutionality of a penal statute or of a penal ordinance can be resolved in a
criminal proceeding and if vested property rights are not in jeopardy, then a court
of equity should not intervene. Braskey, 216 S.W.3d at 863.
Turning to the issue of whether the Ordinance is penal, the test is whether
the wrong sought to be redressed by the Ordinance is a wrong to the public or a
wrong to the individual. See Huntington v. Attrill, 146 U.S. 657, 668, 13 S. Ct.
224, 228 (1892). Public wrongs are a breach and violation of public rights and
duties, which affect the whole community, considered as a community, and are
distinguished by the harsher appellation of “crimes and misdemeanors.” Id. at
668–69, 13 S. Ct. at 228; see also Trop v. Dulles, 356 U.S. 86, 96, 78 S. Ct. 590,
595 (1958) (“In deciding whether or not a law is penal, this Court has generally
based its determination upon the purpose of the statute. If the statute imposes a
disability for the purposes of punishment—that is, to reprimand the wrongdoer, to
deter others, etc., it has been considered penal.”). The purpose of the
Ordinance—which is set forth in the City’s Code of Ordinances in “Chapter 12 –
Health and Sanitation,” “Article VI – Nuisances,” and “Division 2. – Cleanliness
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and Sanitation of Premises”—is to protect the health, safety, and welfare of the
community from the problems that arise from an overgrowth of grass and weeds.
See Grapevine, Tex., Code of Ordinances ch. 12, art. VI, § 12-92 (1979)
(defining a nuisance as “[w]hatever is dangerous to human life or health;
whatever renders the ground, the water, the air, or any food or drink
unwholesome or a hazard to human life and health”). Thus, the Ordinance
addresses a wrong to the public at large, which could adversely impact the
health, safety, and welfare of the entire community. Also, in addition to the
Ordinance’s provisions authorizing citations and a statement of costs equal to the
cost the City incurs to abate the violation, the City’s Code of Ordinances provides
that a person who violates the Ordinance is guilty of a misdemeanor and can be
fined up to $2,000 in addition to the cost of abatement. See id. § 12-98. The
Ordinance is penal. See Holford v. City of Houston, No. 01-97-00296-CV, 1998
WL 177349, at *1 (Tex. App.—Houston [1st Dist.] Apr. 16, 1998, pet. denied) (op.
on reh’g, not designated for publication) (describing Houston’s high-grass
ordinance as a penal ordinance because a violation was punishable by a fine of
$50 to $2,000); see also Mayer v. State, No. 05-07-00695-CR, 2007 WL
4112035, at *1–4 (Tex. App.—Dallas Nov. 20, 2007, no pet.) (mem. op., not
designated for publication) (following his citation for violating Grand Prairie’s
high-grass-and-weeds ordinance, appellant challenged the ordinance in his
criminal proceeding, arguing that his due process rights were violated by not
properly putting him on notice of a violation and by allowing arbitrary enforcement
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of an unconstitutionally vague ordinance); McDonald v. State, 693 S.W.2d 660,
660–62 (Tex. App.—Dallas 1985, no pet.) (following his conviction for violations
of McKinney’s high-grass-and-weeds ordinance, appellant challenged the
ordinance in his criminal proceeding as unconstitutional on the grounds that it
was vague and overbroad).
Because the Ordinance is penal, the trial court––a court exercising
equitable jurisdiction in a civil suit filed by Azadpour against Appellees––
possesses no jurisdiction to render declarations of rights, status, or other legal
relationships arising under the Ordinance unless Azadpour established both that
the penal Ordinance (1) is unconstitutional and (2) threatens irreparable injury to
property rights. See Morales, 869 S.W.2d at 942. Azadpour’s pleadings do not
explain what vested property right of his was threatened with irreparable harm by
the Ordinance. Even broadly construing Azadpour’s pleadings to allege that he
somehow has a vested property right to grow grass on his property taller than six
inches, this allegation does not constitute a threat of irreparable injury to a vested
property right. See City of Univ. Park v. Benners, 485 S.W.2d 773, 778 (Tex.
1972), abrogated on other grounds by Bd. of Adjustment of City of San Antonio v.
Wende, 92 S.W.3d 424 (Tex. 2002) (explaining property owners do not have a
constitutionally-protected, vested right to use real property in any certain way
without restriction); Wild Rose Rescue Ranch, 373 S.W.3d at 217 (holding
ordinance’s restriction that would prohibit continued use of property as animal
shelter did not threaten irreparable injury to property rights because property
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owners do not acquire vested rights in particular use of property); Braskey, 216
S.W.3d at 864 (holding that ordinance’s restrictions on use of plaintiff’s property
as to cat shelter did not constitute threats to vested property rights).
Because Azadpour has failed to plead facts that demonstrate how he
would suffer irreparable injury to vested property rights by virtue of the
Ordinance, the 236th District Court—exercising equitable jurisdiction in the civil
suit filed by Azadpour—lacks subject-matter jurisdiction to issue a declaration as
to the rights, status, or other legal relationships arising under the City’s penal
Ordinance. See, e.g., Morales, 869 S.W.2d at 942; Wild Rose Rescue Ranch,
373 S.W.3d at 218 (holding that plaintiff was not allowed to replead because its
pleadings negated any jurisdiction over declaratory judgment action challenging
constitutionality of ordinance where plaintiff did not show that ordinance was not
penal or that it would suffer irreparable injury to a vested property right). We hold
that the trial court did not err by granting Appellees’ plea to the jurisdiction as to
the City on Azadpour’s declaratory judgment action. See Wild Rose Rescue
Ranch, 373 S.W.3d at 218 (affirming trial court’s order granting plea to
jurisdiction on plaintiff’s request for declaratory judgment on penal ordinance);
Braskey, 216 S.W.3d at 864 (vacating trial court’s judgment and dismissing case
for want of jurisdiction because trial court did not have jurisdiction to hear lawsuit
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involving penal ordinance in absence of showing of irreparable injury to vested
property right). We overrule Azadpour’s first issue.4
V. TRIAL COURT ERRED BY GRANTING APPELLEES’ PLEA TO THE JURISDICTION AS TO
TIGNOR ON AZADPOUR’S REQUEST FOR AN INJUNCTION AGAINST TIGNOR
With regard to his claim for a permanent injunction against Tignor to
prevent him from trespassing on Azadpour’s property, Azadpour argues in his
second issue that the trial court erred by “accepting Defendants’ contention that
there is no private civil cause-of-action in the State of Texas for trespass to a
private property.” The trial court, however, did not reach the merits of any of
Azadpour’s claims because it decided the case on the Appellees’ plea to the
jurisdiction. See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)
(“In deciding a plea to the jurisdiction, a court may not weigh the claims’ merits
but must consider only the plaintiffs’ pleadings and the evidence pertinent to the
jurisdictional inquiry.”). Because the trial court granted Appellees’ plea to the
jurisdiction and dismissed all Appellees from the suit, including Tignor, we
broadly construe Azadpour’s argument as asserting that the trial court erred by
granting Appellees’ plea to the jurisdiction on Azadpour’s claim against Tignor.
See generally Tex. R. App. P. 38.9.
4
Azadpour does not challenge the trial court’s granting of Appellees’ plea
to the jurisdiction on his claims for (1) a temporary injunction against Rumbelow
to enjoin him and Does 1-49 from enforcing the Ordinance or (2) a writ of
mandamus directing Rumbelow to correct the Ordinance. Our disposition of
Azadpour’s claim for a declaratory judgment on the vagueness of the Ordinance
necessarily precludes Azadpour from repleading these two claims.
10
Immunity does not bar a suit for prospective injunctive relief against
government actors in their official capacity for violating the law. Heinrich, 284
S.W.3d at 373–77. The proper defendant in an ultra vires action—in which the
plaintiff’s complaint is that a state official has “trampled on the plaintiff’s rights”—
is the state official whose acts or omissions allegedly trampled on the plaintiff’s
rights, not the state agency itself. Id. at 372–73. To fall within this ultra vires
exception, a suit must not complain of a government officer’s exercise of
discretion but rather must allege, and ultimately prove, that the officer acted
without legal authority or failed to perform a purely ministerial act. Id.
Azadpour’s second amended petition reflects that he sued Tignor in his
individual and official capacities. Azadpour’s second amended petition alleges
that because the Ordinance provides that a property owner shall be notified of a
violation of the Ordinance by mail or may be notified by publication in the city’s
official newspaper, Tignor acted ultra vires by entering onto Azadpour’s property
and taping the notice on the glass next to Azadpour’s front door. Azadpour
contends that the Ordinance does not authorize notice by entering the property
and taping papers near the door; consequently, Azadpour contends Tignor’s
entry onto the property was a trespass. Because Azadpour sued Tignor in his
official capacity and alleged that Tignor acted ultra vires by entering Azadpour’s
property and by taping the notice near his front door, Azadpour’s claim for an
injunction prohibiting Tignor from entering Azadpour’s property falls within the
ultra vires exception to governmental immunity that allows a suit against a
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government actor in his official capacity. We therefore hold that the trial court
erred by granting Appellees’ plea to the jurisdiction on Azadpour’s claim for a
permanent injunction against Tignor. See id. at 377, 380 (holding that plaintiff
sued board members in their official capacities, and thus plaintiff’s claims for
prospective injunctive relief were not automatically barred by immunity); cf. Tex.
Dep’t. Transp. V. Sefzik, 355 S.W.3d 618, 623 (Tex. 2011) (remanding to allow
plaintiff to replead to cure jurisdictional defect by adding a claim against TxDOT
officials for improperly denying his permit).5 We sustain Azadpour’s second
issue.
VI. TRIAL COURT DID NOT ERR BY GRANTING APPELLEES’ PLEA TO THE
JURISDICTION AS TO RUMBELOW ON AZADPOUR’S REQUEST FOR A WRIT OF
MANDAMUS REQUIRING RUMBELOW TO MAKE PUBLIC RECORDS AVAILABLE
In his third issue, with regard to his claim for a writ of mandamus directing
Rumbelow to make public records available to Azadpour, Azadpour argues that
the trial court “erred in accepting Defendants’ contention that a request for [a]
letter-ruling submitted by a governmental entity to the Texas Attorney General
deprives a court-of-competent jurisdiction to hear a private cause of action
brought pursuant to the Texas Public Information Act” (TPIA). [Ant’s Br. 4] We
broadly construe Azadpour’s argument as arguing that the trial court erred by
granting Appellees’ plea to the jurisdiction on his claim against Rumbelow. See
generally Tex. R. App. P. 38.9.
5
We express no opinion on the underlying merits of Azadpour’s trespass
claim; we hold only that it is not barred by immunity.
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The TPIA provides that
[a] requestor or the attorney general may file suit for a writ of
mandamus compelling a governmental body to make information
available for public inspection if the governmental body refuses to
request an attorney general’s decision as provided by Subchapter G
or refuses to supply public information that the attorney general has
determined is public information that is not excepted from disclosure
under Subchapter C.
Tex. Gov’t Code Ann. § 552.321(a) (West 2012). The Texas Supreme Court has
held that a suit for mandamus under section 552.321(a) should be brought
against the public information officer. A & T Consultants, Inc. v. Sharp, 904
S.W.2d 668, 681 (Tex. 1995) (orig. proceeding).
Azadpour served a written request for public records on Rumbelow on or
about June 28, 2013. On or about July 5, 2013, Azadpour received records
responsive to his request; however, the name of the person who had complained
about Azadpour’s yard had been redacted, and other requested information was
not provided. Azadpour filed a complaint in the Open Records Division of the
Texas Attorney General’s Office, claiming that the redacted or withheld
information was not supported with references to any statute providing for the
redaction or withholding of such information. By letter dated July 16, 2013, the
City requested a letter ruling from the Attorney General on the withheld
information; the City copied Azadpour with this letter. Azadpour subsequently
filed his second amended petition, in which he added a claim against Rumbelow
requesting a writ of mandamus under the TPIA. At that time, the City had
already requested the letter ruling from the Attorney General, and Azadpour’s
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brief concedes that Appellees brought this fact to the trial court’s attention during
the hearing on Appellees’ plea to the jurisdiction on August 22, 2013.
Thus, because the City had already complied with the first portion of
section 552.321(a) by requesting a letter ruling from the Attorney General,
Azadpour’s request for a writ of mandamus under the first portion of section
552.321(a)—providing for a writ of mandamus compelling a governmental body
to make information available for public inspection if the governmental body
refuses to request an Attorney General’s decision—was moot at the time that the
trial court granted Appellees’ plea to the jurisdiction. And Azadpour did not plead
that the Attorney General had issued a letter ruling with which the City had not
complied; indeed, he could not because no letter ruling had been issued at that
time.
We therefore hold that the trial court did not err by dismissing Azadpour’s
claim for a writ of mandamus against Rumbelow under the TPIA. See Tex. Gov’t
Code Ann. § 522.321(a). We overrule Azadpour’s third issue.
VII. CONCLUSION
Having overruled Azadpour’s first and third issues, we affirm the trial
court’s granting of Appellees’ plea to the jurisdiction to the extent that it dismisses
the City and Rumbelow from the suit. Having sustained Azadpour’s second
issue, we reverse the trial court’s judgment and remand the case to the trial court
for further proceedings on Azadpour’s claim for an injunction prohibiting Tignor
from entering Azadpour’s property.
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/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: June 5, 2014
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