the 40th District Court Ellis County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins
GRAY, CHIEF JUSTICE
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.
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. 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
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
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.
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.
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.
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).
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. 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).
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.
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.
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
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.
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.
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
the trial court did not err in any of the complained of
evidentiary rulings, HOP's second issue is overruled.
first issue, HOP contends the trial court erred, for various
reasons, in granting the City's amended plea to the
jurisdiction and ...