HDW2000 256 East 49th Street, LLC and Westbury, Inc. v. The City of Houston

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CASE NO. 0 1- ACCEPTED 221EFJ017255397 FIRST COURT OF APPEALS HOUSTON, TEXAS 13 January 4 P4:53 CHRISTOPHER A. PRINE CLERK 12-000s3-cv FILED IN HDW2000 256 East49'r' Street, LLC, et al $ IN THE COURT OF APPEALS 1st COURT OF APPEALS Appellant HOUSTON, TEXAS FOR THE F]RST DISTRICT 4:53:54 PM VS 1/4/2013 S THE CITY OF HOUSTON Appellee $ oF TEXAS CHRISTOPHER A. PRINE Clerk APPELLANTS' MOTION FOR EN BANC HEARING COME NOW, HDW2OOO EAST 49TII STREET, LLC AND WESTBURY, INC., Appellants, and files this Appellants'Motion for En Banc Hearing: I This rnotion is being filed in confbrmance with TRAP 49.I and 49.7. il. This rnotion is opposed by Appellee. III. The Courl of Appeals issued its opinion on December 6,2012. On December 20,2012 Appellants requested a foufteen (14) day extension to file its Motion for Rehearing to January 4,2013. This motion was timely filed in accordance with TRAP 49.8 and the Court retains plenary jurisdiction. IV. A. Mot ion for en hanc hearing a. Introduction Appellants are HDW2000 256 East 49th Street LLC and Westbury, Inc. Appellee is the City of Houston. A panel of the Court issued the judguent and opinion in this case on December 6,2012. A copy of the Metnorandum Opinion is attached as Exhibit A. The panel that rendered judgrnent in this case consisted Justices Jennings, Higley and Sharp. of b. Argurnent & Authorities The Court has the authority to grant this rnotion and submit the case to the full court, sitting en banc. Tex. R.App. P.41.2. The primary issue was whether the substantial evidence supported the surnmary judgrnent uphotding the Order of the City of Houston Building and Standards Cotnmission, The panel resolved the issue by holding that there was more than a scintilla ofevidence to support the Order. The evidence in this case clearly demonstrates that the findings ofthe Building and Standards Cornrnission were overbroad, not supported by the evidence and invalid as a rxatter of law. The panel wrongfully upheld orders which included alleged code and ordinance violations where the undisputed evidence clearly showed that no such violations existed at the time of the hearing. Additionally, the panel's resolution of this case, by finding that one or more violations suppolts an Order that includes violations which were not proven, is contrary to an opinion issued by the Fourteenth Court ofAppeals, No. 14- I 10005 1-CV, Secure Properties, Inc. v. City of Houston, Jan. 12, 2012. Exhibit B. In that case, the Court reversed and remanded Code violations which were included in the Order but were not supported by the evidence. The issue in this case presents such an extraordinary circumstance that resolution of the issue by the Court en banc is necessary. TRAP 41.2(c). Where an order of the Building and Standards Commission finds numerous violations which the City adrnits are not suppofted by the evidence, the entire order is defective. The panel incorrectly takes the position that ifthere is a scintilla of evidence on one ofthe code violations in the order, the entire order should be upheld, even though there was absolutely no evidence ofviolations ofthe other code provisions included in the order. Filed along with this motion is the brief, offered on rehearing, which argues the merits of this motion. ? PRAYER Based on the foregoing arguments and authorities, the Court should hear this case en banc, and the Order of the 113rH Judicial District Court ofIlarris County, Texas, must be reversed and the case remanded to the trial couft for fuilher proceedings. Dated: January 4,2013. Filed this the 4th d p of January,2013. s o G. LO 440 Louisiana, Suite 200 Houston, Texas 77002 713-963-0003 713-224-2815 FAX Tex. Bar Card No. 12636500 ATTORNEY FOR APPELLANTS CERTIFICATE OF SERVICE I certify that on this the 4th day of January, 2013, a true and correct copy of this HDW2000 256 East 49tr' Street LLP and Westbury, Inc.'s Appellants' Motion for En Banc I-Iearing, was served on each person listed below by the method(s) indicated: Ms. Elizabeth Stevens Assistant City Attorney P.O. Box 1562 Houston, Texas 7 7 25 l -l 562 _ Certified Mail RRR Facsimile Transtnission Regular Mail XX Personal 1 Counsel for Appellee ROBERT G. LOWMAN, t Olrinion issr:ed December 6,2012 ln The toart stgflpeuls For The Jf it st Distrin of A'exu* N0.01-12-00053-CV STREET WESTBU RY, I NC., Appellants HDW2OOO 256 EAST 49th ANd THE CITY 0F H0UST0N, Appellee 0n Appealf rom the 113th District Court Harris County, Texas Trial Couri Cause No.200B-46371 MEMORANDUN/l OPINION Appellants, HDW2000 256 Eait 49th Stleet, L.L.C. and Westbury, Inc (collcclively "Westbuly") challenge tlrc trial court's surnmary judgrnent in favol of appellee, the City of Houston ("the City") on W.estbury's federal and state bra t+ , B,-r h due process claims and the tlial court's substantial evidence review affirming order"s of the City's Building and Standards Commission ("the Cornmission"). In two issues, Westbuly contends that the trial cour"t erred in finding that there is substantial evidence to support the ordels of the Commission peftaining to theil ploperty and the tlial courl elled in granting summaly judgment on their due precess clairns. We affir'tr.r. Background The Texas Legislature autholizes municipalities to regulate housing and othel structures and issue orders requiring the repair, removal, and demolition of suclr structures, after notice and hearing. See Tpx. Loc. Gov'T CoDE ANN. $$ 214.001,.003 (West 2008 & Supp. 2012), $$ 214.001r-.002,.004-.005 (West 2008), $ 214.0031 (West Supp. 2012). Section 214.0012 provides for judicial review of such orders. The Local Govelnment Code authorizes the appointment of a local Building and Standards Commission to hear and determine cases alleging violations of health and safety ordinances. See Tpx. LoC. Gov'T CoDE ANN. SS $$ 54.03s, .040. The Cornmission conducts adrninistrative hearings pursuant to this authority, and judicial review of its decisions is statutorily prescribed. See s4.031-.034, .036-.039, .041-.044 (West 2008), generally Houston, Tex., Code of Ordinanoes ch, 10, aft. id. g 54.039(a);see IX, $$ 10-341-360 (2011) (formerly gg 10-39i-410). Because Westbury seeks judicial review of the 2 Commission's decision, section 54.039 wiil control Westbuly owns several buildings, including a theater', cotnmonly kuown as "Westbury Squale." The thlee buildings at issue in this case were designated by the City as Buildings 5 and 11, its tlieater'. In 2008, the City initiated ploceedings concelning the cor.rdition of the tluee buildings and on May 29'2008 sent hearir.rg notices to Westbuly. 'lhe notices specified under which code sections of Chapter 10 of Houston's Code of Ordinances the tlrree buildings were alleged to be substandald, dangerous, and otherwise in violation. The Commtsston it issued separate orders on June 23, conducted a healing on June 18, 2008, and 2008 peltaining to each of tl.re three buildings. The Commission found that each of the three buildings was dangerous, substandard, and Code in violation of numerous sections of Chapter 10 of the City's of Ordinances. The Cornrnission's ordels requiled Westbury to obtain pelmits to repair the deflciencies that had made the structures dangerous within 30 days. The Ordels also authorized the City to "remedy, alleviate, or l'emove any substandard or dangerous building" and place liens on the properlies if the City took such measures. On July 18,2008, Westbury filed an Original Petition for Judicial Review, and the distlict court's review was limited evidence lule. TEx. Loc. Gov'r to a hearing under the CoDE ANN. $ 54.039 3 (fl (West 2008) substantial Westbr"rry later amended theil petition to assert tl.rat the City had violated their state and federal procedulal and substantive due process rights. On Januar:y 7, 2010, the City lemoved the case to the Uirited States Distr'ict Coul1 fol the Soutlreln Distlict of Texas. ,9ed 28 U.S.C. $S 1331, 1343, and 1441. There, the City sougl.rt and was glanted summary judgment on Westbury's state and fuder:al substantive and procedut'al due process claims. 'Ihe federal court expressly luled on both the Texas and fedelal due process 1o exercise supplemental claitls. The federal coufi then declined julisdiction over the substantial evidence review of the Commission's decision, and it remanded those claims to the state court Back in state court, the City filed a motion for summary judgment on Westbury's federal and state substantive and procedut'al due process claims based on les judicata, specifically, issue preclusion. The trial courl granted the City's summary-judgment motion on Decetnber 29, 2011, entering an order that dismissed Westbury's due process claitns on the basis of res judicata. The trial court conducted the substantial evidence review of the Commission's decision and issued its final judgrnent on December 14, 2011. In its judgment, the trial court ordered that Westbury take nothing, and it afhrmed the Commission's orders, Substantial Evidence Review In their' first issue, Westbury argues that the trial court erred in affir'ming the 4 ol'ders of the Comrnission because the orders al'e not supported by substantial evidence. Substantial evidence review is limited in that it requires "only tnore than a nrele scintilla," to suppod an agency's determination. Clty of Dallas v. Stewart, 361 S.W.3d 562,566 (Tex.2012) (quoting Monlgomery lndep. Sch. Dlst. v. Dallas,34 S.W.3d 559, 566 (Tex. 2000)). Substantial evidence leview "gives significant deference to the agency" and "does not allow a coul1 to substitute its judgrnent for that of an agency." R.R. Cotnm'n 0f Texas v. Tlrch ?perattng Co., 912 S.W.2d 790,792 (Tex. 1995). Under the substantial evidence standard of review, "the evidence in the lecord actually may pleponderate against the decision of the agency and nonetheless amount to substantial evidence." Tex. Health Facilities Cotnm'n v. Charter Med.-Dallas, /nc.,665 S.W.2d 446,452 (Tex. 1984) An agency's findings, inferences, conclusions, and decisions are presumed to be supported by substantial evidence, and the party appealing the agency decision has the burden of proving otherwise. City of El Paso v. Pub. Util. Comm'n 0f Tex., 883 S.W.2d 179,18s (Tex.1994). The recold of the proceedings before the Commission that was considered by the trial coud included the Commission?s notices to Westbury, tapes and DVD lecoldings ofthe June 18, 2008 hearing, tlanscripts ofthe hearing, photoglaphs of 5 the ploperty, ancl an eight-minute video of a walk-tl.uough of the property sarne evidence r The is contained in the appellate record, including the eight-minute video.2 A r.eview of the record derlonstrates that there is substantial evidence to support the cornrnission's detennination that the three buildings at westbul'y Squale wele in violation of the City's Code of Ordinances. As deter.mined below, the Cornmission heard testimony about the three buildings fi.om City inspectol Steve Gomez of the Houston Police Department ("HPD") Neighbor'hood Plotection Corps. Gomez testified that he began inspections of the ttu'ee buildings at Westbury Square in 2005 and he had last inspected the properly on June 17,2008, only one day befole the Commission's In the trial court, counsel for Westbury adrnitted that the record presented to the trial coud for its substantial evidence review was the same record presented to the Comrnission, and he rrade no objection on that basis. On appeal, Westbury argues that the record of the Cornrnissiou hearing is inadequate for judicial review purposes. Having failed 1o obj ect to the record as it was subnitted to the trial court, Westbury has waived any issue regarding the record, See Pavelka v' Texas Worlforce Comnt'n, No. 03-05-00293-CV, 2006 WL 2852501 +4 (Tex. App.- 2006) (finding waiver u,hen parly did not object iu the adnrinistrative lecorcl offered into evidencc atjudicial r-cview trial); see als7TEx. R. APP. P. 33.1. Even if Westbury had not waived this cornplaint by failing to object to the trial court, this issue is part of Westbury's due process clairns that Austin Oc1. 3, were adjudicated in the federal court. 2 Westbury asserts in theil reply brief that this eight-minute video was not included in the clerk's or reporter's lecord and is not part of the appellate tecord, thus rnaking the City's reference and reliance on the video in-rproper. I-Iowever, the video is in fact part of the appellate t ecord, contained in Volurne 5 of the repol1er's record. Therefore, the eigl-rt-rninute video of the property is properll' before this Courl for review. 6 hearing. Othel evidence offered by the City included photographs and the eightminute video walk-through of the properties fihned the day before the hearing. Bulldlng lVo. / The Commission lbur.rd that Building 1 was in violation of plovisions 10341,10-343,10-344, 10-361, and 10-451 of the City's Code of Ordinances. In its order', the Commission stated that Building 1 was a dangerous building within the terrns of sections 10-361(a) Building 1 (2,3,4,5,8, 11), (b) (1,2,3) and(c), and it statedthat was substandard within the terms of section 10-341(e). These code provisions requile that buildings within the City be fi'ee of dead tlees, tlash, refuse, glass, or building matelials (section 10-341(e)); be secure fi'om unlawful entry by vagrants, uninvited persons or children (section 10-361(a)(11)); not have 33%o or more damage or detelioration to supporting members or 50% or more damage to non-supporting members or outside walls or coverings (section 1 0-3 6 1 (a)(2)); have weather tight and waterproof roofs and walls (section I 0- 361(a)(3)); may not have loads imploperly distributed on floors or t'oofs, may not have overloaded floors, and have floors and roofs purpose used (section 10-361(a)(a)); parts attached so as not to fa11 of sufficient stlength fol the of the propefty must be propelly and injure people (section 10-361(a)(5)); not be damaged generally by various causes such as vandalisrn or elements ofnatule such that they are dangelous to the life, safety, ol general health and welfale of the occupant or 1 inhabitants of the city (section 10-361(a)(8)); not be a dangel to the public even though secured frorn entry (section 10-361(bX1)); not have loofs, walls and flools that have holes allowing insects, rodents or pests to gair-r access for harbolage to the extent that it plesents a hazald to health or safety (section 10-361(b)(2)); if boarded-up, rnust be adequate to secul'e to plevent unautl-rolized entry ol' use of the building (section 10-3 61 (b)(3)); if under a person's contlol, not be in a condition as to constitute a dangerous building (section 10-361(c)); be free of weeds, blush, rubbish and all other unsightly or unsanitary mattel of whatever nature, holes that hold or are liable to hold stagnant watet', "any othel cause . . . liable to cause disease or produce, harbor, or spread disease gelms of any nature ol'tend to render' the sulrounding atmosphere unhealthy, unwholesome, or obnoxious" (section 104s 1(b)(i 0)). This Court has reviewed the video walk-thlough. Almost the fir'st three minutes of the video shows the condition of Building 1. Duling the healing, inspectol Gornez noted and explained the deficiencies in Building 1 as shown in the videotape. He pointed out that the videotape shows that a wall had been removed frorn the building and covered with plastic, a fi'ont portion of the building had been boalded up, but the soffits wele sti1l open, and a section once been open, had on it plywood that was falling down ofa wall that had and holes and cracks. The video also shows roof damage, veneer damage and open soffits. Gomez 8 evidence of vagrant activity in his initial inspection. I-Ie also noted that there were seals and supporting meurbers with deteliolatiou on the exteliol' wall causing in,properly distlibuted loads at the glound level of the building in violation of section 10-361(a)( ). Westbuly asserts that lhele is not substantial evidence to support the Cornmission's finding that Building 1 was uot secured fi'om unauthorized entry in violation of section 10-361(bx3). Inspector Gornez did testify that Building I was detelmined to be unsecured after his inspection in 2005 and it was later secut'ed. However, at the tin.re of the June 2008 hearing, some of the plywood that had been used to secule the building had starled puliing away from the structure, thus making it once again unsecured from unauthorized entry. We conclude that the record from the hearing contains more than a scintilla of evidence to support the Commission's findings that Building 1 was in violation of the listed city ordinances related to dangerous and substandard buildings. Accordingly, we hold that the trial coult did not err in finding that the Commission's older relating to Building 1 is supported by substantial evidence. Bulldlng Al0. 5 The Cornmission found that Building 5 was in violation of provisions 10- 341, 70-343, 10-344, 10-361, and 10-451 of the City's Code of Ordinances. In its order, the Cornrnission stated that Building 5 was a dangerous building within the 10 ternrs ofsections 10-361(a) (2,3,4,5, 8, 11), (b) (1, 2, 3) and (c), and it noted that Building within the terms of section 10-341(e). 5 was substandald Inspector. Gomez testified tl.rat he found the following code deficieucies at Building 5: 10-341(e), 361((a)(1t), (aXz), (aX:), (aX+), (a)(s), (aX6), (aX8)' 361(bX1), (bX2), (bX3),361(c), and 10-451(b)(10). In detailingthe deficiencies of Building 5, Corncz noted: Building No. 5 is a two-story - a two-story, wood-fl'ame multifamily structut'e on concrete slab. The exterior of the structure needs protective coating, has detel'ioration of the exteriol veneer. Due to the elements of nature, the roof is in great dislepair. The means to cover this is with - they seem to have put plastic over the roof in the lneantlme. Atso, the - okay. Cover - loose surface materials, holes, cracks. The properly has high weeds, rubbish in the back portion of the property, open storage of building materials causing rat harborage conditions. And this is in the back section ofthe propefty. Inspectol Gontez also noted and explained the deficiencies in Building 5 as slrown in the videotape including roof damage. Although Gomez noted that the stlucture had been pleviously secured where a lot of windows had been broken, he noted deterioration to the exterior wal1s and that "pieces of things of the extelior were hanging down." Also, mold and deterioration existed on the lower porlion of the exterior walls of the building. At the back portion of the building, some siding was falling off. Watching the video in the healing Gomez explained: 1l This is one side of the building, can see this is a stairwell - wooclen stailwell going to the upstairs. This is a back portion of this building, can see sotne detelioration, some of the siding falling. There is whel'e he - attempts were made to secule the structule itself. Thele's plastic covering up the roof and section there of wall. This is some of tlre lubbish and high weeds and open storage building material ir.r the back. It's more plastic that's up there trying to cover the damage to the r"oof. I-Iigh weeds, blush causing lat harborage conditions. More high weeds, Open storage building materials, brush, trash, rubbish. rnore holes, cracks in the exteriol walls of the building. Mole holes, cracks. Trash and rubbish you see here. See more deterioration of the soffits. See the extensive roof darnage on top. It's We conclude that the record fiom the hearing contains mot'e than a scintilla of evidence to suppofl the Cornrnission's finding that Building 5 was in violation of the listed city ordinances related Accordingly, we hold that tl.re to dangerous and substandard buildings. trial court did not elr in finding that the Commission's order relating to Building 5 was supported by substantial evidence. Bui/ding tVo. ll The Commission found that Building 11 was in violation of plovisions 10343, 10-344, 10-361, and 10-451 of the City's Code of Ordinanoes. In its order, the Commission stated that Building 11 was a dangerous building within the telrns of sections 10-361(a) (2,3, 5), (b) (1,2,3) and (c), and it noted that Building t2 11 was substandard within the telms of section 10-343(3X1 1). Inspector Gomez, coucerning Building 11, the theater, testified as follows: CITY'S ATTORNEY: Ale Westbury Squale Building No MR. GOMEZ: you familiar with 530 1 1 known as a theater? Yes, I am were CITY'S ATTORNEY: Initially, deficiencies of Chapter' 10 with that structure? MR. GOMEZ: there Yes, there was. CITY'S ATTORNEY: You listed codes of 103a3(c)(i1), 361(a)(2), (a)(:), (a)(s), 361(bX1), (bX2), (b)(3), and (c). Additionally, 10-451(b)(10). What were the deficiencies of that structure? MR. GOMEZ: At that initial inspection, the exterior wall was taken down and it was boarded up again and the means to secule it stalted deteliorating again. But upon my last inspection yesterday, he actually repailed the whole rear wall adequately enough. And to my recomrnendation, lhat that building had been in compliance, everything was colrected on that building. CITY'S ATTORNEY: So do you submit for the record that Building No. 11 is in com - Building No. 11, the theater', is in cornpliancc and that none of the deficiencies of Chapter' 10 in which you listed exist at this time? MR. GOMEZ: The only thing that I saw was there's still - on the high section of the wal1, there was a couple of bricks that wele missing. But other than that, the rest of the wall was completed. CITY'S ATTORNEY: 1 1 totally in cornpliance? I'll 13 ask again, is Building No. \4R. GOMEZ: Well - CITY'S ATTORNEY: According to the deficiencies of Chapter 10 in wliich you listed? MR. GOMEZ: No. CITY'S ATTORNEY: Can you please tell - MR. GOMEZ: It would still be probably Section 10361(a)(3), roofs and walls that are not weather tight and waterproof that would still be in violation' Gornez noted in his narlation of the video walk-through that the theater had been painted and Hardiplank had been installed on the exteriol wall, but there was still a hole on the corner of the outside brick veneer. Additionally, the video showed high weeds neal Building 1 1, as well as some building materials left on the glound' There is evidence in the record that westbury did not have a permit to make the repairs it had made to Building 1 1. Inspector Gomez testified that he was not aware of a peilnit for Building 11 and had not seen one on the building. Other' eviderrce showed permits for Buildings I and 5, but not for Building 1 I' We conclude that the record liom the hearing contains more than a scintilla of evidence to support the Cornmission's finding that Building I 1 was not weathet' tight and waterproof. SeeHouston, Tex., Code of Ordinances ch. 10, ar1. IX, $ 10361 (2002). Additionally, the r.ecord fiom the hearing shows thatthe co[rrnission hear-d evidence that We stbury had not obtained the appropriate permits to make the repairs that had been done to the building. And it could not show that t4 the cornpleted r-epairs had lreen made in compliance with the City's Code plovrslons. We conclude that the record fi'orn the hearing contains mol'e than a scintilla of evidence that Building 11 was not in cornpliance with the listed city oldinances related to dangerous and substandard buildings. Accoldingly, we hold that the trial cour.t did 1ot err in finding that the Comrlission's order: relating to Buildir-rg i 1 is suppolted by substantial evidence. We oven'ule Westbury's fit'st issue' Due Process Claims In their. second issue,3 Westbury argues that the trial court erred iu granting the City summary judgment on theil claims that the Commission violated theil due pr.ocess rights under Texas Constitution, article 1, section 19 and the Foufteenth Amendment of the United States Constitution because (1) the Comrnission did not provide Westbury adequate notice; (2) Westbury was prevented from showing contradictoly evidence during cross-exarnination and was not allowed proper' ) the cornmission entered a demolition older without findings to support it; (4) the City's presentation of the evidence portlayed cross-examination; (3 Westbury's buildings in a faise light and provided a misleading perception of the general condition of the buildings; (5) the record from the Commission's proceedings was incomplete and inadequate for judicial review; and (6) Westbury Our review of this issue on appeal is lirnited to the trial court's grant of the City's n-rotion for summary judgment on the grounds of r es judicata, 15 requestecl, bu1 u,as not given the oppor:tunity to reruiew in advance the evidence that the City intended to present at the hearing, thus denying them au opportunity to properly prepafe a defense for- the cornrnission's hearing. In regald to its procedur.al and substantive due pl:ocess clairns, Westbury does not make any distinction in regard to its r.ights under article 1, section 19 of the Texas Constitution and the Fourteenth Atnendment. Westbury does not algue that the Texas Constitution provides States Constitution. It it with any greatel protections than does the United rnerely cites the Texas Constitution along with the Fourleenth Amendment. Westbury's same due process claims frarned the basis for the City's removal to federal distr.ict court. Once in federal court, the City rnoved for summary judgment on Westbuly's due process claims, and the fedelal couft granted the City's summary judgment, expressly ruiing on both the Texas and federal due process claims. After the case was remanded back to state court, the City fiJqd anothel motion for summary judgmeut on the basis of res judicata and issue pleclusion asseding that Westbuly's due process arguments had been fully and finally decided by the fbderal district court and could not be re-litigated in state court. Slandard of Revlew To plevail on any surnmary-judgtrrent motion, including one based on 16 res the r.elitigation of a claim ol cause of action that has been finally adjudicated, as as related mattet's that, with the use of diligence, should have been litigated in priol suit." ld. Collatelal estoppel ot' issue preclusion pl'events relitigation well tlre particular issues ah'eady resolved in a plior suit involving the same parties and same issues of fact or law. ld.; see als7 Acker v, Clty of Huntsville,TST of tl.re S'W'2d79, 80 (Tex. App.-Housron [14th Dist.] 1990, no writ). "The policies behind fres judicatal r.eflect the need to bling all litigation to an end, pl'event vexatious litigation, maintain stability of coufl decisions, prolnote judicial economy, and prevent double recovery." Ba rr, 837 S.W .2d at 629 ' /ssue Preclusion The City argued res judicata on the basis of issue preclusion as the ground for sumrnary judgrnent on Westbury's state and federal due process claims. Issue preclusion or collatelal estoppel applies to block Westbuly's relitigation of their' due process claims making the trial po-ur1's grant of summary judgment appropr.iate. Issue preclusion bars the re-ligation of identical issues of fact or law that were actually litigated and essential to the judgment in a prior suit. Van Dyke v. Boswell, O'Toole, Davis & Pickering,697 S.W.2d 381, 384 (Tex' 1985); RESTATEMENT (SecoNo) oF JUDGMENTS $ 27 (1982). Thele are three eletnents necessaly to establish issue preclusion: "(1) the facts sought to be litigated in the second action were i8 fully and failly litigated in the prior action; (2) those facts wele essential to the judgrnent in tl.re fir'st action; and (3) the parties were cast as adversaries in the fir'st action." BOnniwell V. tseech Alrcraft C7rp.,663 S.W.zd 816, 818 (Tex. 1984). Those elements are pres ¬nt here. Fir.st, both parties were permitted by the federal coutl to fully and failly litigate Westbury's feder"al and state due ptocess claims. The record t'eflects that in response to the City's motion fol partial sulnmary judgment on the due process claims, Westbur.y filed a lengthy response of almost 100 pages with exhibits, Westbury's operative pleading in federal couft was the satne as their pleading in state court. Westbuly's due process claims were raised by the pleadings and briefed by the parties. And the federal coult was competent to render a determination on Westbury's due process issues. Next, "the applopr"iate question is whether the issue was recognized by the pafiies as important apd by the trier of fact in the first action first judgment." See Acker, 787 S.W.2d at 8i. aS nqcessary to the Again, the factual asseftions undellying Westbury's due process claims levolved around adequate notice and the hearing conducted by the Commission. We note that in neither the trial court below, nor in this Coult, did Westbury nake any distinction in regald to its lights to due process under the Texas Constitution and the United States Constitution. The record before us establishes that the factual assedions underlying Westbui'y's l9 proceclr.tral and snbstanti\/e due pt'ocess claims are the same and rvet'e essential to the fir'stjudgrrent. There can be no doubt that the thild element requiled fof the application of issue pleclusion, that tl,e palties be cast as advet'sal'ies in the first action, exists here. Because this is the same litigation with the sarne parties upon lemoval to the feder.al cour.t and on r.emand back to the state coufi, en that point there can be no dispute, The broader and mor.e general principal of res judicata also applies to block Westbuly's reiitigation of theil state and federal due process claims. pleclusive effect of a fedelal judgn.rent is deterrnined by federal law' The Eagle Props., Ltd, v. Scharbauer, 807 S.W.2d 714,718 (Tex. 1990) ("[S]ince the first suit was decided in federal coufi judicata . . federal law controls the detelmination of whether will bar a latel state coufi r"es proceeding."). Under federal law, for the doctrine of res judicata tq ,apply, four elements must be satisfied: (i) the palties rnust be identical ol in privity; (2) the plior judgment must have been rendeled by a court of competent jurisdiction; (3) there must have been a final judgment on the melits; and (4) the same cause of action rnust be involved in both cases. Iasl Masters Educ. Servs,, lnc, v. Slngh, 428 F.3d 559, 571(5th Cir, 2Q05); see also Anstadt v, U.S. Brass C0rp,,919 S.w.2d 644,652, (Tex. 1996); Coal. of Cltles for Affordable Util. Rates v. Pub. Utrl. Conn'n 20 0f Tex.,798 s.w.2d 560,562-563 (Tex. 1990). Tl.re actious int olt,e the satne clairr.rs if the1, 31s based on "the same nucleus of operative facts." Walker v. Anders7n,232 S.W.3d 899,912 (Tex. Dallas 2007, no pet.); App'- ln re Southmark C0rp., 163 F.3d 925, 934 (5th Ctu.1999). Like Texas, the Fifth Cilcuit has adopted the transactional test of the Restatement (Second) of Judgments in detelrniling whether res judicata applies. TeSt MaSterS, 428 F.2d at 571 . "Under the transactional test, a plior judgment's preclusive effect extends to all lights of the plaintiff with respect to all or any part of the transaction, or series of cotnmercial tt'ansactions, out of which the original action arose." /d Hele, the four eletnents undel the federal standard are met. The recold establishes that the parlies to the fedelal suit are the same. Indeed, the instant suit was initially filed by Westbuly and removed to fedelal coutl by the City. The recor.d also establishes tl.rat the same state and fedet'al due process claims made by Westbury fi.arned the basis fol the City's removal of the suit to federal courl and they wgr'e still made in Westbury's live plq4ding in state court aftq1 the case was remanded bacl< to state cour1. And Westbury acknowledges that they pleaded the same due process claims in both federal and state court. The judgrnent in the fedelal suit was rendet'ed by a court of competent jurisdiction. The City removed Westbury's lawsuit under 28 U.S.C. $$ 1331, 1343, and 1441.. The federal district court had jurisdiction once Westbury raised a fedelal question asserting that their civil r"ights had been violated. 28 U.S.C. 21 $$ 1331, 1343. And the City was entitled to l'emove the case to fedel'al couft. 28 u.s.c. $ 1441. Westbur.y's clains of substantive and procedulal due process violations were concluded by a fir.ral judgment that leached the rnerits of its claims. See Test Masters,428 F.3d at 571. As r-roted by the federal distlict courf, "Finally, fthe City] ar.gues that Plaintiffs' substantive and procedural claims fail on the merits. The Coud aglees." HDW2000 256 Easl4gth Slreet, L.L.C' v' Clty of Houston,H- \0-70,2011WL722618 at *4 (S,D. Tex. Feb. 22,2011). Westbury argues that the federal district courl judgment was not final because were, there would be nothing left for the state court to decide. if it Westbury misses the point. A federal district cour"t's gt'ant of summary judgment on all fedelal claims and remand of all remaining state 1aw claims in a partialsumrnary judgment is an appealable final order because there is nothing left for the federal coul't 56.l3}l2llal; to decide. see See lI MooRP's FEDrRar. PRACTICE GUIDE $ M0rris v. T.E. Marine C7rp.,344 F.3d 439, 445 (5th Cir. 2003) (aspect of judgrnent that is distinct and separable from remand ordel is reviewable by federal appellate court); Koch v. Clty of Del City,660 F.3d 1228,1235 (10th Cir. 2011) (federal district coufi grant of summaly judgment on federal claims and rernanding remaining state 1aw claims was final appealable order); Porter v. Wllllams,436 F.3d 917,919-20 (8rh Cir. 2006) (remand of remaining state-law 22 clair-ns, aftel the fecleral olair-ns at'e resoh,ed makes pal'tial sulllmaly judgment a final order. because thele is nothing left for the federal district aourt to l'esolve). In Hyde Park Co. v. Santa Fe Clty Councll, the courl noted thal "[f]ederal appeals coufis have consistently held . . . that they have jurisdiction to t'eview a distr.ict court order disrnissing federal claims on the merits where the district courl subsequently exercised its discletion under [section] 1367 to remand supplemental state law claims feder:al claims to state coult. Otherwise, a district court's order dismissing in such a situation would be effectively unleviewable." 226 F.3d 1207,1209 n. 1 (1Oth Cir.2000) (citations omitted); See als7 Guzman v. Ment'l Hermann Hosp. Sys., CIV.A. H-07-03973,2009 wL 3837042 at *8 (S.D. Tex. Nov. 12,2009). As to the final elerner.rt fot' res judicata requiring that the same cause of action must be involved, that is the case here, Again, the same due process claims raised by Westbuly in the state courl framed the basis for the City's removal of the suit to feder al cour.t, and the clairns wele still in Westbuly's live pleading before the state couft after lemand of Westbury's state law claim for substantial evidence leview of the Commission's decision, We hold that the City met its summary-judgment bulden of establishing that Westbuly's due plocess clairns ale balred by res judicata. See Adams v. Texas Bd. of Prlvate lnvestlgators and Prlvate Sec. Agencies, No, 03-96-00228-CY, al 1997 WL 304172 at +4 (Tex. App,-Ar-rstin June 5, 1997, no writ) (holding that res judicata supported grant of summary judgment precluding federal claims that had been decided by federal cout't when case was lemanded for consideration of state law claims). Accoldingly, we hold tl.rat the trial courl did not et'r in granting the City surnmary judgment on Westbuly's due process claims. We overrule Westbury's second issue. Conclusion We affirm the judgrnent of the trial cour1. Terry Jennings Justice Panel consists ofJustices Jennings, Higley, and Sharp. 24 Affirmed in Part, Reversed and Remanded in Part, and Memorandum 0pinion filed January 12,2012. ln The Jfruurtrlent$ @uurt uf Appeuk N0. 14-11-00051-CV SECURE PR0PERTI ES, I NC., Appellant V. CITY 0F H0UST0N, Appellee 0n Appeal from the 189th District C0urt Harris County, Texas Trial Court Cause No.2010-13306 MEMORANDUM OPINION Appellant secure Properties, Inc. (SPI) petitioned the district court for judicial review of two orders issued by the City of Houston Building and Slandards Comrnission. The distlict court signed a judgment affirrning the cornrnission's decision, and SpI appealed to this court. We affinn in part, and reverse and r.emand in part. BAcKGROUND Undel the Texas Local Governrnent Code subchapter entitled "Quasi-Judicial Enforcernent of Health and Safety oldinances," a rnunicipalily rnay provide for the E.v+r Br-t B rl appointment of a Building aud Standards Cornmission to hear and determine cases concerning alleged violations of the rnunicipality's health and safety ordinances. See Gov'r Coos ANN. gg 54.031 .044 (West 2008 & Supp. 2011). The City of I{ouston's Building and Standards Cornrnission conducts adrninistrative healings TEX. Loc. pursuant to this authority. See genera/lyli-luston, Tex., Code of Ordinances ch. 10, art. IX, $$ I0-341-360 (2011) (formerly $$ 10-391-410). SPI owns rental ploperty consisting of two wood-fi.arned buildings at 23 08 and 23 10 Winbern Street in I{ouslon, Texas. On January 15,2010, the Ciry gave SPI written notice that the Cornmission would hold a public healing concelning alleged violations of the Houston Code of Ordinances on the property on February 3, 2010. The notiee infonned sPI that it could present evidence and witnesses concerning the alleged violations at the hearing. SPI alleges that prior to the hearing, City ofhcials gave SPI president Christopher Hageney inconsistent information about whether. the hearing should be postponed pursuant to City policy. SPI does not argue that it received written or verbal confirmation that the hearing was cancelled or rescheduled. I{ageney appeared at the hearing on behalf of SPI, confirrned that he received notice of the hearing, and requesled a continuance. The Comrnission denied the requ ¬st. The City then presented photographs and testimony regarding the alleged violations. Ilageney did not cross-exarnine the City's witness or.introduce any evidence. The City recotnmended the following deadlines for remediation of the Building 1 violations: 10 days to obtain perrnits to secure the structure to specifications; 10 days to obtain repail or demolition perrnits; and 30 days to repair or dernolish the structure. The City recotnmended the following deadlines for rernediation of the Building 2 violations: 10 days to obtain repair perrnits; and 30 days to repair the structure. In response, Hageney infonned the cornrnission that he needed at least 90 days to get bids frorn contractors, obtain the pemrits, and cornplete the lepair work on the two buildings. 2 Ili two (2) separate ordel's, the Comrnission (1) found that notice rvas properly given; I 2 rveLe in violation of numerous Code of Ordinances provisions; (3) adopted the City's recorlurendation for the repair or dernolition of Building l; and (4) gave SPI 15 days to obtairl repair perrnits and 60 days to repair Building 2. f-he Cornnrission infonned Ilageney: "I think if you work rvith the concluded that both Building and City on this . . . they can work and adjust 1he time sornelirnes when you're shorving good e lfort. " SPI pelitioned the district court for otr March I,2010. judicial review of the Comrnission's decision SPI invoked the district courl's inherent authority to review SPI's cornplaint that the Commission's actions violated SPI's constitutional rights, as well the district courl's authority to review the Conrmission's findings for as "substantial evidence" pursuant to section 54.039 of the Texas Local Government Code. See Tpx. LoC. GoV'r CoDE ANN. $ 54.039. Specifically, SPI clairned that the Cornrnission's orders should be reversed because (1) the Comrnission's denial of SPI's request for a continuance violated SPI's procedural due ptocess rights because "SPI was notified [by City officials] that the hearing would be reset"; and (2) the Cornmission's findings are not "reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole."l The City filed a sumrnary judgment motion, arguing that it was entitled to judgtncnt as a lnatter of Jaw on SPI's argurnents. The district courl granted surnlnary judgrnent iu favor of the City, effectively affirming the Cornrnission's decision. In four issues on appeal, SPI argues that (1) the district court's judgrnenl is elroneous to the ex1en1 that it applied the wrong standard of review to SPI's procedural due plocess challenge; (2) the Cily failed 1o show entitlernent to a ruling as a matter of law that the Commission's actions did not violate SPI's procedural due plocess rights, and the evidence conclusively establishes a procedural due process violation; (3) the I SPI listed additional grounds fol challenging the legality ofthe Co:rmission's rlecision, but SPI does rlot appeal the dist|ict cou|t's rejection ofthose argurnenls. 3 Cotlmissiou's factual findings regarding the ordinance violations are not supported by substantial evidence; and (4) the procedural due process violation was not remedied by the City's offel in the district court to agree to a proposed judgment rernanding the case for a rehearing, because SPI was entitled to a de novohearing. ANALYSIS l. Standards and Authority for Judicial Review of the Comurission's Decision The righl to appeal the decision of an administlative body exists if (1) such right is statutorily created, or (2) the complained-of aclion violates a person's constitutional lights. See Firenten's & Policenten's Civil Serv. Comm'n of City 0f Flrt Worth v. Kennedy,514 S.W.2d 237,239 (Tex. 1974) ("[A]n inherent right of appeal fi.om an administrative body created by an act silent on the question will be recognized only where the adrninistrative action cornplained of violates a constitutional provision."); alsl Smith v. Nelson,53 S.W.3d 792,795 (Tex. App.-Ausrin .sed 2001, pet. denied) ("[T]here is no autornatic right to appeal an adrninistrative decision that does not violate the appealing party's constitutional rights; such a right to appeal exists only if legislatively granted."). Both types of judicial review are authorized in this case, and each involves separate inquiry governed by a separate standard of review. See a Tsx. Loc. GOV'T CODE ANN, $ 54.039 (authorizing appeal to district cour-t for judicial review of .Cornmission. decisions for a hearing under substantial evidence rule); Lewis v. Metr7. Sav. & Loan Ass'n, 550 S.W.2d 11, 15 16 (Tex. 1977) (holding that a revievring court's conclusion that admiuistrative body's factual firrdings are supported by substantial evidence does not preclude separate inquiry into whether the administrative body acted so arbitrarily as to violate a party's right to due process); Perkins v. City 0f San Antonlo,293 S.W.3d 650, 653 n.2 (Tex. App.-San Antonio 2009, no pet.) ("We note . that in addition to reviewing whether substantial evidence suppods the Board's order, an arbitrary action of an adrninistrative agency cannol sland, including any actior-r that deprives a parly of due process; therefore, the trial coult also is pennitted to consider whether the proceedings 4 before the Boald satisfied the requir-ements of due process.") 'lo survive appeal, administrative proceedings rnust nreet the federal and state constitutional lequirements of due process of law and the rudiments of fair play. See Granek v. Tex. StaIe Bd. of Med. Exam'rs, 172 S.W.3d 161,772 (Tex. App.-Ausrin 2005, no pct.) (ciling Tex. Health Facilities Conun'n v. Charter Med.-Dallas, lnc., 665 SW.2d 446,454 (Tex. 1984)); Grace v. Structural Pest Czntrll,620 S.W.2d 157, 160 ('l-ex. Civ. App.-Waco 198 1, rvlit ref d u.r'.e .). Administrative hearings are not required to measure up to judicial standalds, but even administrative hearings must not be arbitlary ol inherently unfair that they deny the palties due process of law. so City of Arllngton v. Centerfolds, 1nc.,232 S.W.3d 238, 250 (Tex. App.-Fort Worth 2007, pet. denied) (citing City of Corpus Christi v. Pub. Util. Comnt'n,51 S.W.3d 231,262 ('lex. 2001)); Grace,620 S.W.2d at 160 (citing Lewls,550 S.W.2d ar 15-16). regarding the deprivation presents a question of law of constitutional rights subject b by an adrninistrative A clairn proceeding de n0v0 review on appeal. See Lee v. City 0f WL 2254401, at *3 (Tex. App.-Houston [14rh per. denied) (citing Granek, 172 S.W.3d at77I-72). Houston, No. 14-05-003366-CV,2006 Dist.l Aug. 8,2006,, Additionally, any owner aggrieved by a Building and Standards Cornrnission decision may present a petition to a district courl seekillg judicial review of the Commission's findings under section 54.039 of the Texas Local Government Code. See TEX. Loc. Gov'T CODE ANN. g 54.0j9(a). The disrrict courr .tnay allow a wrir of certiorari directed to the commission panel to review the decision." /d. $ 54.039(b). The district cout't's judicial review under this provision "shall be limited to a healing uuder the substantial evidence rule," and the district court 'hay reverse or affinl, in whole or. in part, or rnay rnodify" the Commission's decision. ld. 5 54.039(f). When conducting a substantial evidence review, the reviewing court must affirrn an administrative order supported by any quanlum of evidence greater than a scintilla. R.R. Contm'n of Tex. Torch 0perallng C0., 912 S.W.2d i90, 792-93 (Tex. 1995). v, Wherher subsranrial evidence sullports the cornmission's decision is a question of law; therefore, we perform 5 our substantial eviderice review de n0V0 \Nithout deference to the district courl's conclusion on the sarne issue. See Lee,2006 WL 225440I, at *2 (analyzine identical "substantial evidence" judicial review provision applicable to rnunicipality decisions regarding dangerous structures, as authorized by Texas Local Govelnrnent Code sections 214.001-.005 (citirg Tex. Dep't of Pub. Safety v. Jackson, T6 S.W.3d 103, 106 (Tex. App.-Houston [14th Dist,] 2002, nopel.))).2 With these sl-andards of review in mind. we address each of SPI's issues out of ord er. ll. SPI's Challenges tO the District Court's Judgment A. Procedural Due Process SPI argues in Issue 2 that the district court ened in concluding that SPI's procedural due process rights were not violated. Specifically, SPI cornplains that (1) the City failed to make any legal arguments regarding cefiain factors relevant to a procedural due process analysis; and (2) the undisputed evidence establishes a procedural due process violation. The City presented the district court with relevant authority and cor:rectly explained that "[p]rocedural due process requires reasonable notice and the opportunity to be heard at a rneaningful tirne and in a meaningful manner." See Univ. of Tex. Med. Sch. v. Than,90l S.W.2d 926,930 (Tex. 1995). The City's argument to the district courr was suppolted by 1he following undisputed facts: I{ageney (1) received written notice, (2) appeal'ed at the hearing, and (3) had an actual opportunity to be heard, cross-exarnine rvitnesses, and present evidence. The City concluded that SPI's due process rights were nol violated because "[t]he [r]ecord conclusively 2 establishes that [sPI] received This standard of review is not incorrsistent with the de novo slandard of leview applicable to a hial coud's conclusion that the movaut is entitl ¬d to summary judgrlent "as a mattel of law." Sed TEX. R. Crv. P. 166a(c); Valence 0peratlng C0. v. Dorset, 164 S.W.3d 656, 661 (Tex, 2005). The parties do not challenge and we do not leview the propliety of the City's use of summaly judgment procedur.es to tesolve the exclusively legal questions that ale raised in an appeal from an adrninistrative hearing to a dist|ict court. However, we note that the City conceded at oral at'gument that it since has abandonid the use of surnrnaty.judgl'nent procedures to r.esolve such appeals. 6 reasonable notice of the hearing and an opportunity to be hear.d-at a rneaningful tirne and in a meaningful mameL." SPI contends that the City's argument is incornplete because "fe]xactly what coustitutes due process in a given si{uation is measured by a flexible standard that depends on the practical requilements of the cir.curnstances," SPI ar:gues that the City should have addressed this "flexible standard" and analyzed the thlee factols lelevant to its application: (1) the privale intel'est affected by the state action; (2) the risk of elroneous deprivalion of a constitulionally protected intelest under the procedures used and the likely benefit of any additional procedures; and (3) the governrnent's interest, includitig the fiscal and adnrinistrative burdens, that additional or substitute procedural lequirerrents would entail. See Mathews v. Eldrldge,424 U.5.319,334-35 (1976); 930. SPI cornplains rhar the City did not show entitlement to judgnient as a matter of law because the City failed to identify or present evidence Than, 901 S.W.2d at legalding these f'actors. Because SPI does not seek the irnposition of additional or substitute procedures conternplated by the Mathews/Than factors, the City had no need to address them in its argument to the district coufl. See Mathews,424rJ.S. benefits would have been provided with at333,349 (recipient of disability evidentiary hearing had he sought t'econsideration of adrninistrative decision to terminate beiiefits, and due process did not additionally require evidenliary hearing prioi to thar decision); Than,g0r S.w.2d at 932 (student was provided notice and opportunity to be heard prior to disciplinary disrnissal, but due process additionally required hearing officer to grant student's request to be present during presentation of evidence against hirn unless other circurnslances justified ex pafte presenlation of evidence). SPI does not challenge the sufficiency of the written notice received by I{ageney or argue that the Cornmission's existing hearing procedures actually prevented l{ageney frorn having an opportunity to be heard, present evidence, or closs-exarnine witnesses. Rather, SPI argues that the Cornn-rission's denial of Hageney,s t equest for a continuance-after he rnade it known to the Corlrnission that he was 7 unprepared because he "was told [the hearing] would not go forward by the City's representatives"-deplived SPI of its due process right to a ureaningful opportunity to be heald and "to presenl its objectioris to the testimony of the City, present controverting evidence, and cross exarnine witnesses." We conclude that the City's legal argulnents to the district court on this issue were sufficient. SPI also argues that the district courl's judgrnent is erroneous because the evidence conclusively eslablishes that SPI sulfered a procedural due process violation.3 No1 every denial of a requested continuance conslilutes constitutionally-guaranteed due process ight. an efl'ective denial of See Slate v. Crank,666 S.W.2d a 91,94-95 (Tex. 1984) (concluding thal under the circumstances, the adrninistrative body's denial of did not effectively deprive Crank of his "due process rights to fair representation"). "There are no mechanical tests for deciding when a denial of a conlinuance conljnuance is so arbitrary as to violate due process," and such a determination depends on the circurnstances in each case. ld. (civil appeal frorn order of the stale Board of Dental Examiners revoking Crank's license; applying rule to administrative body's denial ofCrank's request for continuance (citing Ungar v. Sarafite,376 U.S. 575, 589 (1964))). The circumstances in this case do not reveal a pl'ocedural due process violation. SPI presidenl Hageney appeared at the hearing on behalf of SPI and requested additional time to prepare;a t SPI also argues that, at a ninilnum, the uncontested srlnltlary juclgment evidence "r'aises a genuiue issue of nraterial fact" r'egalding its asserted ploce<1ural due plocess violation. The issue o1' whether the Commission violated SPI's procedural due process rights is a legai question, not a factual one. see 1ee,2006 wL 2254401, at +3 (citing Granek,tTz s,w.3d at 771-12). No other',factual issue" exists because, as SPI points out, the City does not dispute SPI's version of the events relevant 10 this Iegal inquiry. We thelefole leject this additional argument fol revelsing the district court's judgment. a These excelpts are taken fr-onr a Purpofted transclipt of a recording taken at the administrative healing, which was attached as an exhibit to the City's surnlnaty judgrnent rnotion. SPI does not challenge the City's chal acterization of this ol any other exhibit to its motion as a true copy taken fr.orn the ce{ified tecotd ofthe administlative hearing. The cedified record ofthe administrative hearing does not aclually appeal in the clelk's recold as a retuln ol) the tlial coult's wtit of cerliorali. I'lowever, neither. par-ty assigtrs elror to this point. Tlierefore, for purposes of this appeal, we accept the record as tt.ue ald con]plete. 8 I'r,e been in communication wilh [the City] and I rvasn't prepaed. I was told 10 colne down here and say that the repairs were on their way. So I didn't bring any photos or any evidence on rny behalf. . . [A]s soon as I received that, I did starl calling you. So I'm not I would like, I just you know, as my light to have time to reset and to continue the lepairs. I'rn an owner hele trying to cornply. - . - I did receive the certified nolices[,] which is why I'm here. * What I'rn saying is prior to receiving that nolice, prior 1o receivirig the notice to corne to [the] healing, I didn't realize I was undel any violation. I didn't I received a notice saying come to a hearing. I immediately called, met an inspector. I understand that your process hasn't change[d]. I would be contacted[,] whether by certified rnail or whatever. And I would go out and meet an inspector. The inspector would say I want these repairs done. And it happened on this property in 2005 when the inspector signed off [withoul a hearing]. So I would like the you have an owner here 1rying to cornply. I'd like the opportunity - continue to continue with what we're doing. We only met opportunity to one week ago and already probably a significant portion ol' a third or half of the repails are done. I will have the rest of theln done within the 90-day period. I have no photos and nothing to offer as evidence. And I would have come I would have taken a different tact [sic] as opposed to trying to immediately cornply with the recommendation. I received a notice to corte to this hearing. What is rny understanding is normal is !o rgqeiyg 4 4otiqe that I'm in violation, to go meet the inspector and try to comply before you go to [a] hearing. I haven't been afforded that. I'rn just asking that if can I continue to do the repairs? * I think thele's a diffelence in the way in the rnanner in which I . . . do the repairs after the hearing takes place. I'm never I've been in real estate and worked with this organization for many years under many different directols. I've never been to [a] healing and I've always I have - never been cited on things in the past and I have always cornplied and I've been to [a] hearing. I was not afibrded that possibility under this scenario. ,B 9 I rvas undel the nnderstanding that was wliat was going to happen or else I rvould have takeu photos and have bids and been able to tell you that I can cornplete these repairs withiri this period of tirne. I I don't have any inlorrnalion.5 - The Cornrrission voted to deny SPI's request for a continuance. Duling SPI's appeal to the district court, SPI proffered for the first tirne affidavit by I{ageney, in which lie s1a1es an that a City official told Flageney that the hearing should not have been schedulcd because "the City has a policy of not scheduling hearings with property owners who are attempting 1o cornply rvith violations."6 Hageney states that the official inforrned I-Iageney that if he rnet with inspectors and had the repairs underway, the scheduled hearing would be "postponed" for 60 days, I-Iageney followed these instrucLions. Ife attended a meeting with City officials on the day of the hearing, where he learned that the City intended to go forward with the hearing because the file conlained no notation that the hearirig should be postponed "according to the agreement between SPI arid the City." After that meeting, a City inspector told Hageney, "[D]on't wolry, we will take care of this." An hour or two later, the official wlio originally discussed the Ci{.y's policy with Hageney told hirn that she noted that the hearing "should be postponed" in an email, and instructed I{ageney to ask for additional time "to instigate repairs." In response, the City informed Flageney that it planned to "recornmend', an additional 60 days for SPI "to instigate repairs." Hageney characterizes the City's decision to "go forward wilh the hearing" as a violation of its asserled promise 1o 5 When the Conrtnission noted that it had the option lo give SPI a 90-day cornpliance peliod at the ofthe healing, Hageney explained why this solution was not a sufficient altetnalive 10 a cortinuauce: "The diffelence would be that I would have to get a diffelent set of pelrnits if we go thlough witb this hearing. . , U would ltave to get an] occupancy permit[,] which would require rne to bring the entire end propefty up to code as opposed 1o lepairing the dantages that they have.,, 6 Tlre palties dispute on appeal whethel the distlict coult's review of SPI's procedural due process complaint was linited to the record developed at the adlninistrative level, or if the palties could adduce new evidence for the first tinre on appeal to the district coul't. SPI complains that the City failed to pleserve this issue because it failed to object to Hageney's affidavit in the district couit. We do not decide either issue because we can affir'ur the distlict court's judgment by assunring without deciding that the district couft propelly could have considered the newly adduced evidence. seeTEx. R. App. p. 4?.1 ("The court of appeals must hand down a written opinion . that addresses every issue laised and necessary to final disposition ofthe appeal."). 10 'lostlrone" the healing or "recornrlend" al additional tirne fol repairs. We do not agree that these cilcun'rstances .indicate that the Comrnission's denial of SPI's motion fol colrtinuance was arbitlary, an abuse of discretion, or an effcctive denial of SPI's due process light to an oppoltunity to be heard at a meaningful time and in rneaningful rrannel'. See Crank,666 S.W.2d had notice of the hearing, and it at94-95. a SPI unequivocally adrnits that it does not conteud that any City officials ever confirrned that tlie hearing was poslponed according 1o "policy" in response to SPI's rernedial actions. The fact thal SPI met with City officials to discuss the stalus of the postponerxent on the day of the hearing, as well as the fact that SPI actually atteuded the hearing and requested additional tirne, belies SPI's implied contention that it relied on the City's assurances and believed the hearing to be effectively postponed before the date of the hearing. That SPI chose to attend the hearing ernpty-handed because it assurned its request for continuance would be glanted does not affect our analysis. Cf, Ezeoke v. Tracy,349 S.W.3d 679,687 (Tex. App.-Houston [14th Dist.] 2011, no pet.) ("A lawyer who garnbles by requesting a continuance and then leavirig the country before the request has been ruled on reasonably can anticipate adverse consequences. "). Accordingly, we do not agree with SPI that the evidence establishes a procedulal due process violation. We ovenule SPI's Issue 2.7 B. SubstantialEvidence SPI argues in Issue 3 that substantial evidence does not support the Cornmission's findings that SPI's property u'as in violation of cedain Code of Ordinances provisions. t SPI argues in Issue 1 that the district couft erred "to the extent that" it relied on the "substantial evidence rule" as tlre applicable slandald of leview fol its procedural due process argument. Nothing in 1he t'ecotd indicates that the distrjct courl applied alt incorrect standard; the City's rnotion does not urge and the district coutt's oI'det does not lecite an incorrect standard. Additionally, because we can affir.rr the districl coult's conclusion by app)ying the colrect standards in our de nov7 reviev,, of SPI's challenges to tlte Conmission's decision, we also ovelrule Issue 1. SPI argues in Issue 4 that the City's offel to agree to a proposed judgrrent remanding the case for a rehearing did not lemedy the asserted plocedutal due ptocess violation, Because we conclude that no plocedural due plocess violation occulred, we also ovellule Issue 4. 11 I'exas recognizes a rauge o1'standards for reviewing administrative findings: (1) pure trial de novo; (2) pure substantial eviderlce; and (3) substantial evidence de novo. Perkins,293 S.W.3d at 653. We review the Comrnission's decision undel the pule subslantial evidence rule, which autholizes the leviewing court to considel only the factual recold nade befole the administrative body and detelmine if its findings ale reasonably supported by subslantial evidence. See Tpx. LoC. GOV'T CODE ANN. 5a.89(D; Perklns,293 S.W.3d $ at 653. "Substantial evidence review resembles legal sufficiency review." See Dozier v. Tex. Emp't Contm'n,41 S.W.3d 304, 309 (Tex. App.-Houston [14th Dist.] 2001, no pet.). "Substantial evidence" is defined as evidence amounting to mole than a rnere scintilla. Tex. Health Facllities Comnt'n,665 S.W.2d at 452 (citing Alamo Express, lnc. v. Unizn Clty Transfer,309 S.W.2d 815, 823 (1958)). Under substantial evidence revierv, the evidence in the record actually rnay preponderate against the decision of the agency and nonetheless anount to substantial evidence. /d. (citing Lewls,550 S.W.2d at 13). "The true test is not whether the agency reached the correct conclusion, but whether sotne reasonable basis exists in the record fol the action taken by lhe agency." ld. at 452-53 (citing Gerst v. Nixzil,411 S.W.2d 350, 354 (Tex, 1966)). Adrninistrative findings, inferences, conclusions, and decisions are presumed to be suppo(ed by substantial evidence, and the burden is on the appellant to prove otherwise. ld. at 453; Tex. Alcoholic Beverage Comnt'n v. Mini, Inc., 832 S.W.2d I47, 150 (Tex. App.- I-Iouston [14th Dist.] 1992,writ denied). The Comrnission found ihal Building Houston's Code of 1 was in violation of the terms of the City Ordinances Section 10-361(a)(3), (a)(1 1), and (b)(2), as well of as Sectiorr l0-343(bX4), (c)(9), and (e)(3).8 These subsections concern buildings that are not weathertight and waterproof; secured frorn unauthorized entry to the extent that vagrants, uninvited persons, or children could enter; fiee ofholes that constitute health or 8 The Conrrnission also found that Building I does not challenge that fi:rding on appeal, l2 was in violatio of Section l0-343(c)(4), but SPI safety hazards or that would allow insects and other pests to gain access to the exlent constituting a present hazard to health ol safety; or free of interiol lubbish and garbage. Seei-Ious1on, Tex,, Code of Oldiriances ch. 10, art. IX, $$ 10-361, 10-343 (2002) (curleut versiolts at $$ 10-371, 10-363). The Cornrnission found that Building 2 was in violation of the lemrs of the City of I-Iouston's Code of Oldinances Seclion 10-343(c)(1), (c)(a), and (c)(9). These subsections concern buildings that are not protected on the exterior' from decay; weatherploof and watertight; ol fi'ee of holes that corlstitute health or sal.ety hazards. See ld. 5 10-343 (2002) (culrent version at g 10-363).e SPI challenges each of these findings under the substantial evidence rule. With respect to Building 1, City inspector Cherie Strong testified to her observations based on her inspeclion of the property the morning ofthe hearing: The structure was vacant and open with partially boarded windows and doors. A few of the windows[,] the boards had been removed and there were the pane was broken the window pane was broken in the windows rendering the property not weathertight or waterproof and also rendeling it open to the elernents. The exterior of the structure is deteriorating deteriorating where the wall studs are starting to or being exposed to - elements of nature. the Tho structure is the property is posted no trespassing so I wasn't able to - and get any interior shots. get outo the property lt e Sectiorr 10-361(a)(3) and (a)(11) define a stluctule as a dangelous building if tlre "[rloofs or walls . . . are not weatherlight or watelploof' or if it has "been lel1 unsecured florn unauthorized enhy to ihe exletrt Lhat [it] may be enteted by vag: ants or othel uninvited persons as a place of harborage ol could be enleled by childlen." Houston, Tex., Code of Ordinances ch. 10, art. IX, $ I0-361(a)(3), (a)(ll) (2002). Section l0-361(bX2) states that a building that "is boalded up, fencecl or otherwise seculed in any tnanner" nonetlteless constitutes a dangerous building if "[t]he building's roof, walls or' flool. contains holes that would ailow jnsects, ectoparasites, rodenls ol other pests to gain access to the building for hatborage to the exlent constitutillg a plesent liazard to health or safety." /d. $ l0-361(bX2). Sections l0343(b)(4), (c)(t), (c)(a), (c)(9), and (e)(3) r.equir.e owners ro "[k]eep rhe doors and windows ofa vacant building . . securely closed to prevent unauthol ized entry"; "lp]rotect the exterior surfaces ofa building reasonably subject to decay by application of a plotective coveling, coating or olher pleservative"; "[m]ainlairl a building intended fol human occupancy. . . in a weathelploof and wateftight couditiou"; "[l]epail holes, clacks, breal<s and loose sulface nratelials that are health or safety hazalds in or on floors, walls, ceilings, polches, steps arrd baiconies"; and "[rn]aintain the interior ofa vacalt building , . . fr.ee from lubbish and galbage," /d.9 10-343(b)(4), (c)(t), (c)(+), (c)(9), (e)(3). 13 Yor"r could see rvhere the exterior of the property is starting to mold and it has mildew on i1 where the asbestos is starting to decay. . . . You can see there whele the extelior is deteliorated. You got [sic] brolten windows, open windows, where it's been paltially boarded. More open windows which are allowing for the elements of nature to enter into the structure. Second floor, lnore open windows there were at one tirne partially boalded. . . . [Tlhe exlerior . . . is deteriorating and exposing the wall studs. 'I-his molnir-rg when I went out to the properly, tl're propefly had . . . been boarded a little bi1 secured a little bit better with boalds placed over the windows that were open or broken. As far as the repairing to the exteriol of the other propel ty, i1 has not been done. - With lespect to Building 2, Strong testified to her observations based on her inspection of the property the rnorning ofthe hearing: [T]he property is occupied. It's an occupied multi-dwelling and the property is posted no trespassing so I wasn't able to get onto the propefiy to get any interior shots. But the exterior of the properly is starting to deteriorate where the you could see there's possibly termite damage - the property whele the walls the exterior wall done to the exteriol of covering has deteriolated[,] exposing the wall studs-to the elements of nature and i1 was all around the propeily all around the building. - Around the headers and the window sills around the windows are stafting to deteriorate where apparently there is terrnite damage which would rendel the property not weather tight or waterproof. fThere is] rnore deterioration of the exterior of the property and you can see where it's possible termite damagc there. [Y]ou see the deterioration of the exterior of the covering on the wall, exposing the wall studs to the elernents of nature. [Y]ou can tell that there's ter.rnite damage on the property that's been done to the exterior walls. And around the windows you can see is there where it's deteriorated, where the sill is deteriorated, and the headers are starting to deteriorate . . . rending it not weather tight and weatherproof. is] more deterioration is basically nonexistent, exposing the wall studs. Deterioration around the window and above the gable there is some deterioration above the gable that has been [There 14 where the exterior partially l'epaired but not cornpletell, rsp.ir.6. ro 1he City also introduced a number of photogr-aphs of the property showing exterior damage to the buildings. The electronic date stamp oll these photos ranges lrorn July 2004to January 2010. Wren asked whethel the photographs "represent those structures," Strong answered, "Yes, sir, thcy do." The Commission inquired whether SPI had done any repairs to the buildings, and Ilageney answered: One of the pictures will show the loof was will indicate we replaced the loof at a cost of about $12,000. , . . [W]e seculed the front building no. Some. saw some HardiPlank put up there. Yeah. - HardiPlank. You the front building has been the issue because Sorne ofthe But it's vacant and it's been boarded. And what will happen is, for whatever reason, people take the boards off. But there's s611s - lhslg's some delerioration on the exterior [Y]ou can see where we replaced the loofs on both of them and replaced the facia. We haven't gone around but down below on the right-hand side you can see where we replaced sorne HardiPlank. That's an old photo. That's been repaired. That would have been one fiom before. All that's been repaired.rr So the exterior does have somc places wherc the siding is oll the windows are in disrepair, and some of that trirn around the windows needs to be replaced as we discussed. Vy'e conclude that llie record frorn the hearing contains rnore than a sointilla of evidence that Building 1 was not weatheltight and waterproof; secured from unauthorized entry to the extent that vagrants, uninvited persons, or children could enter; or lree of holes that constitute health ol safety hazards or that would allow insects and other pests l0 The trattscript indicates that a video of Sh'ong's iuspection may have been played for the Com;lission as Strong :rarlates, The Ci1)/ did not include the video in its summary judgment evidence a:rd does not algue that we could view it if it had been included in the t.ecor.d on appeal. ll Tlre lecord does not indicale which photo lJageney was discussing. 15 to gain access to the extont constituting 361(a)(3), (aX11), (b)(2); ld. $ a preserlt hazald to health or safety. See td. $ 10- 10-343(b)(4), (c)(9); see alsl Tex. Health Facillties C2nnt'n.,665 S.W.2d ar 452. We also conclude that the record frorl the hearing contains nole than a scintilla of evidence that Building 2 was not protected on the extelior ftorn decay; weatherlrroof ol walertight; or fi'ee of holes that constitute health or safety hazards. ,t88 Ilouston, Tex., Code of Ordinances ch. 10, art. IX, $ 10-343(cXt), (cX+), (c)(9) (2002); see alsl Tex. Health Facllities Contnt'n,665 S.W.2d at 452. However, the Coururission heard no evidence regarding whethel SPI had kept the interior of Building 1 "free liorn rubbish and garbage" pul'suant to Section 10-3a3(e)(3). ,9r8 Houston, Tex., Code of Ordinances ch. 10, art. IX, $ 10-343(e)(3) (2002). We sustain SPI's Issue 3 to that extent and overrule Issue 3 in all other respects. CONcLUSION We reverse the district court's summary judgrnent on the issue of u,hether substantial evidence supports the City ofI{ouston Building and Standards Cornrnission's finding that SPI failed to heep the interior of Building 1 "free frorn rubbish and garbage" pursuant to Houston Code of Ordinances section 10-343(e)(3); we remand that issue to the district court for proceedings consistent with this opinion. We affirm the district court's surnrrary judgment in all other l'espects. /s/ Sharon McCally Justice Panel consists of Justices Brown, Boyce, and McCaily. 16

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