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House of Praise Ministries, Inc. v. City of Red Oak

Court of Appeals of Texas, Tenth District

May 3, 2017


         From the 40th District Court Ellis County, Texas Trial Court No. 87580

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins



         House of Praise Ministries, Inc. appeals the trial court's dismissal of its appeal of a municipal court's order pursuant to the City of Red Oak's plea to the jurisdiction. Because the trial court only erred in part, the trial court's judgment is affirmed in part and reversed and remanded in part.


         House of Praise (HOP) bought property in the City of Red Oak to build a new church. A brick structure and a mobile home park were on the property at the time HOP bought the property.[1] In an attempt to bring the property into compliance with the City's "Code of Ordinances, " a code enforcement officer determined that certain aspects of the property were substandard and dangerous and notified HOP.

         In 2013, a hearing was held in the municipal court to determine whether the property was in violation of the City's code. After the hearing, the municipal court issued an "Order for Substandard Structure" in which the court found the property was dilapidated, substandard and unfit for human habitation, hazardous to public health and safety and welfare, and did not meet the minimum standards for continued use and occupancy contained in the City's Code of Ordinances. HOP was ordered to make specified repairs or demolish and remove the brick structure and the mobile home park.

         In response, HOP filed a motion for new trial which was overruled by operation of law and then filed a verified petition for review of the municipal court's order in the district court of Ellis County. The City filed a plea to the jurisdiction, and after a hearing, HOP filed an amended verified petition. The City then filed an amended plea to the jurisdiction. A hearing in the district court was held on the amended plea to the jurisdiction. The district court granted the City's plea and dismissed HOP's amended verified petition with prejudice.

         HOP appealed to this Court, bringing two broad issues for review; the first making various attacks on the order on the merits of the plea to the jurisdiction and the second making various complaints about the trial court's evidentiary rulings.

         Evidentiary Rulings

         Because some of the evidentiary rulings complained about in HOP's second issue may weigh into the resolution of HOP's first issue on appeal, we discuss HOP's second issue first. In that issue, HOP contends the trial court erred in making various evidentiary rulings; the first being that it erred in overruling HOP's "objections" to testimony by the City Attorney. Specifically, HOP contends the City Attorney was erroneously permitted to testify regarding the status of the municipal court order.

         The basis of one objection made by HOP during the City Attorney's argument to the trial court was that the City Attorney was "arguing the merits." This is not the argument HOP makes on appeal. In order to preserve error for appellate review, a party's argument on appeal must comport with its argument in the trial court. See In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.-Fort Worth 2009, pet. denied). Because the objection asserted at the trial does not comport with the objection argued on appeal, HOP's complaint is not preserved. Tex.R.App.P. 33.1(a).

         The other objection HOP asserted during the City's alleged "testimony, " that the comments by the City's attorneys regarding the status of the property and the status of what happened since the "plea" was filed was irrelevant, was never ruled on by the trial court.[2] Because there was no ruling, this objection did not preserve any complaint to consider on appeal. See id. (a)(2); Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009).

         The next evidentiary ruling about which HOP complains is that the trial court erred in overruling HOP's objection to the City's affidavit of Bill Jordan, a former Code Enforcement Officer. HOP contends it objected to the affidavit. However, it failed to cite to the record where that objection can be found. The City asserted it was unable to locate an objection in the record. We were unable to locate the objection as well. In response to the City's assertion, HOP contends that objections to conclusory statements in an affidavit may be raised for the first time on appeal. See e.g. Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 670 (Tex. App.-Houston [14th Dist.] 2012, pet. denied) (objection to summary judgment affidavit as conclusory may be raised for the first time on appeal). While that may be true, HOP did not direct the trial court or this Court to which, if any, of the statements in the affidavit are conclusory. Accordingly, because HOP did not object to the affidavit before the trial court and does not direct this Court to any alleged conclusory statements, its complaint about the affidavit's admission is not preserved. See Tex. R. App. P. 33.1.

         Next, HOP complains that the trial court erred in admitting the City's business records because those records are not admissible for proof of the matter asserted. HOP did not object to the admission of the City's business records into evidence. Accordingly, this complaint is not preserved. See Tex. R. App. P. 33.1.

         Lastly, HOP argues the trial court improperly excluded an "Amortization Agreement." The Amortization Agreement is a one page document attached to an affidavit in HOP's response to the City's amended plea to the jurisdiction and motion to dismiss. Determining whether to admit or exclude evidence lies within the trial court's sound discretion. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). A trial court exceeds its discretion if it acts in an arbitrary or unreasonable manner or without reference to guiding rules or principles. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for the trial court's judgment. Id. We must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); see Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 264 (Tex. 2012).

         The City argued to the trial court that the "agreement" was inadmissible under Rule 408 of the Texas Rules of Evidence. Prior to April 1, 2015 and during the time of the hearing in which this rule was argued as a basis for the exclusion of the amortization agreement, Rule 408 provided:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

         Tex. R. Evid. 408 (amended, eff. April 1, 2015). The rule is limited on its face to evidence which is presented to prove "the validity for or invalidity of [a] claim or its amount." Smith v. State, 898 S.W.2d 838, 843 (Tex. Crim. App. 1995).

         The agreement was allegedly an offer by the City to not pursue a court action against HOP regarding the condition of HOP's property if HOP adopted the schedule set out in the agreement. HOP did not accept the agreement. At trial however, HOP offered the agreement as some evidence purporting to prove the City, through the municipal court's Order for Substandard Structure, was "taking" HOP's property without just compensation. In other words, HOP was offering the agreement as evidence of the "validity" of its regulatory taking claim against the City. This is an improper use of the document under Rule 408. Moreover, in a subsequent section of this opinion, we hold that HOP has not asserted a valid regulatory taking claim against the City. Accordingly, the trial court did not abuse its discretion in excluding this evidence.

         Because the trial court did not err in any of the complained of evidentiary rulings, HOP's second issue is overruled.

         Plea to the Jurisdiction

         In its first issue, HOP contends the trial court erred, for various reasons, in granting the City's amended plea to the jurisdiction and ...

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