City of Hous. v. Little Nell Apartments, L.P.

424 S.W.3d 640

CITY OF HOUSTON and Daniel W. Krueger, in his Official Capacity as Director of Public Works and Engineering Department, Appellants

v.LITTLE NELL APARTMENTS, L.P., et al., Appellees.

No. 14–12–01157–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Jan. 23, 2014.

Rehearing Overruled April 24, 2014.

Judith Lee Ramsey, John B. Wallace, Houston, for Appellants.

Brandon Barchus, Houston, for Appellees.

Panel consists of Justices CHRISTOPHER, DONOVAN, and BROWN.

OPINION

MARC W. BROWN, Justice.

Appellants, the City of Houston (the “City”) and Daniel W. Krueger, in his official capacity as Director of Public Works and Engineering Department, present this accelerated appeal from the trial court's order partially denying their plea to the jurisdiction based on governmental immunity in a declaratory judgment action brought by appellees, Little Nell Apartments, LP (“Little Nell”), HFI Regency Park Apartments, LP (“Regency”), and Windshire Apartments, LP (“Windshire”) (collectively, the “Apartments”). After an evidentiary hearing, the trial court sustained in part and denied in part the City and Krueger's plea to the jurisdiction, denying the plea only as to the Apartments' request for a declaratory judgment that Krueger in his official capacity acted in an ultra vires manner by subjecting their properties to drainage fees pursuant to chapter 47, article XIV, of the City's Code of Ordinances. After concluding that we have appellate jurisdiction, we affirm.

I. Factual and Procedural Background

In April 2011, the City enacted Ordinance No. 2011–254, hereinafter referred to as the “drainage fee ordinance.” See Houston, Tex., Code of Ordinances, ch. 47, art. XIV (“Code of Ordinances”). The drainage fee ordinance created a municipal drainage utility, a public utility, “[i]n the interest of public health and safety and a more efficient and economic operation of drainage facilities of the city.” Code of Ordinances, § 47–803. Under the drainage fee ordinance, the City shall “establish a schedule of drainage charges against all real property in the city subject to such charges”; provide drainage “for all real property in the city on payment of drainage charges unless the property is exempt from such payment”; and “offer drainage service on nondiscriminatory, reasonable and equitable terms.” Id. § 47–801. The drainage charges are imposed “[t]o recover the city's cost of service to provide drainage to benefitted properties” and are to be used exclusively for various expenses “associated with the cost of service to provide drainage services within the service area.” Id. §§ 47–821, 47–822(a). Drainage charges are calculated based on the specified rate (either residential or non-residential, and if residential, whether curb-and-gutter or open-ditch) per “square foot of impervious surface of a benefitted property.” Id. § 47–822(b), (c). The drainage fee ordinance provides for various categories of exemptions from the imposition of a drainage charge. Id. § 47–822(f). The director of the City's department of public works and engineering “shall be responsible for the administration of this article [XIV. Municipal Drainage Utility System].” Id. § 47–805. The drainage fee ordinance provides that the director “shall establish and implement a system of verification and correction of drainage charges for each property subject to the drainage charges.” Id. § 47–824(a).

In May 2011, the Apartments received notice of proposed drainage charges that Krueger had determined for each of the Apartments based on each property's impervious square footage. The Apartments submitted requests for verification and correction of their initial drainage charges, specifically indicating that each property's drainage system was not part of the City's drainage system and therefore should be exempt from the drainage charges. See id. § 47–824(b). After these requests were denied, the Apartments requested an appeal. See id. § 47–824(e). These appeals resulted in a downward adjustment of the amount of Regency's impervious square footage, but did not change Little Nell's and Windshire's noticed amounts.¹

In February 2012, the Apartments sued both the City and Krueger in his official capacity. The Apartments sought declarations with respect to whether they were “benefitted properties” under the ordinance, or alternatively, whether they were exempt from drainage charges under section 47–822(f)(2) of the ordinance, and sought recovery for drainage charges that they already paid. The City and Krueger filed a plea to the jurisdiction based on governmental immunity. The Apartments amended their petition to drop their claims for a refund of fees, and to specifically seek a declaration that the drainage fee ordinance is invalid and assert ultra vires claims against Krueger based upon his failure to follow the ordinance. The City and Krueger filed an amended plea to the jurisdiction and a supplement to their amended plea. The Apartments responded in opposition.

The trial court held an evidentiary hearing. Carol Haddock, a senior assistant director in the City's public works and engineering department, and Carl Smitha, the city engineer, testified on behalf of the City and Krueger. David Brown, former chief drainage engineer for the City and former assistant director over design and construction for the Harris County Flood Control District (“HCFCD”), currently in private engineering practice, is the engineer of record for the development of the three properties at issue and testified on behalf of the Apartments.

At the conclusion of the hearing on December 12, 2012, the trial court provided its oral ruling denying in part and sustainingin part the City and Krueger's plea. The City filed its notice of appeal that same day. On January 11, 2013, the trial court signed its written order denying the amended plea and supplement as to the Apartments' request for a declaratory judgment that Krueger, in his official capacity, acted in an ultra vires manner by subjecting their properties to drainage fees pursuant to the drainage fee ordinance, and otherwise sustaining the plea. The trial court indicated that its denial was “due and restricted to the particular jurisdictional facts associated with the [Apartments'] specific locations and drainage at issue in this suit.” The City filed an amended notice to appeal that same day “to provide the written order.” The City and Krueger filed a second amended notice of appeal on March 27, 2013.

II. Jurisdiction

We first review the threshold issue of our jurisdiction. The Apartments argue that this court lacks jurisdiction to hear Krueger's appeal because he was not included as an appealing party on the City's notice of appeal filed on December 12, 2012, the day the trial court made its oral ruling, deemed filed as of January 11, 2013; he was not included as an appealing party on the City's amended notice of appeal filed on January 11, 2013, “to provide the [court's] written order”; and he was first included as an appealing party on a second amended notice of appeal filed by both the City and Krueger on March 27, 2013.² The Apartments contend that Krueger's delay proves fatal to his appeal. We disagree.

Rule of Appellate Procedure 25.1 states that “[a]n appeal is perfected when a written notice of appeal is filed with the trial court clerk.” Tex R.App. P. 25.1(a). The rule contemplates that there might be a defect or that information might be omitted, and specifically authorizes a party to file an amendment “to correct[ ] a defect or omission in an earlier filed notice.” Id. 25.1(g). When a notice of appeal fails to “state that the party desires to appeal” and to “state the name of each party filing the notice,” it is defective. Kim v. Scarborough, No. 14–04–00262–CV, 2004 WL 1574598, at *1 (Tex.App.-Houston [14th Dist.] July 15, 2004, no pet.) (mem. op.) (per curiam) (citing Tex.R.App. P. 25.1(d)(3),(5)).

The Texas Supreme Court “has consistently held that a timely filed document, even if defective, invokes the court of appeals' jurisdiction.” Sweed v. Nye, 323 S.W.3d 873, 875 (Tex.2010) (per curiam) (gathering cases). The Texas Supreme Court also has explained that its “consistent policy has been to apply rules of procedure liberally to reach the merits of the appeal whenever possible.” Warwick Towers Council of Co–Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex.2008) (per curiam) (gathering cases).

Moreover, “a court of appeals has jurisdiction over an appeal when the appellant files an instrument that is ‘a bona fide attempt to invoke appellate court jurisdiction.’ ” City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex.1992) (per curiam) (citing Grand Prairie Indep. Sch. Dist. v. S. Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991) (per curiam)). Thus, appellate courts should allow an opportunity to amend a defective instrument before dismissal. Kim, 2004 WL 1574598, at *1 (describing issuance of court order allowing amendment of notice of appeal). Examples where the Texas Supreme Court has concluded that a bona fide attempt was made to invoke the appellate court's jurisdiction include: where the notice of appeal was filed by the insurer instead of the insured,³ where a party filed a notice of appeal in the alternative as part of a motion for new trial,⁴ where a party filed one “instrument” in an attempt to appeal two probate orders,⁵ where a party filed a notice of appeal with the wrong cause number,⁶ and where a party filed a notice of appeal five and a half months after his claim was dismissed and then amended that notice after the six-month mark to include information required for a restricted appeal.⁷

The City and Krueger assert that their attorneys meant to appeal the partial denial of the plea to the jurisdiction on behalf of both the City and Krueger. They acknowledge their attorneys made a mistake by only filing on the City's behalf, but they...