Azadpour v. City of Grapevine

MOSTAFA ARAM AZADPOUR APPELLANT v. CITY OF GRAPEVINE, BRUNO RICHARD RUMBELOW, GENE TIGNOR, AND DOES 1-49 APPELLEES

NO. 02-13-00323-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

DELIVERED: June 5, 2014

FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION¹

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),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 forthe 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.

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).

IV. TRIAL COURT DID NOT ERR BY GRANTING APPELLEES' PLEA TO THEJURISDICTION AS TO THE CITY ON AZADPOUR'S REQUEST FOR A DECLARATORYJUDGMENT

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 aparty 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. - Cleanlinessand 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,...