XAVIER RODRIGUEZ, District Judge.
On the date, the Court considered Defendants J. Barry Archer, Mike Constantino, and Reyes Hernandez's Second Motion for Summary Judgment (Docket No. 99), Plaintiff's Motion for Summary Judgment (Docket No. 100), Defendant City of San Antonio's Second Motion for Summary Judgment (Docket No. 101), the Defendants' objections and motion to exclude the affidavit attached to Plaintiff's response (Docket No. 107), and the responses and replies thereto. The individual Defendants' motion is GRANTED, the Defendant City's motion is GRANTED IN
The facts of this case were provided in the Court's previous orders on summary judgment. In its Order on Summary Judgment issued on March 8, 2010, 2010 WL 890145, the Court wrote:
On April 16, 2008, Director of Housing and Neighborhood Services David D. Garza concurred [with] the assessment that the structures at 332 E. Myrtle presented a clear and imminent threat to life, safety, and/or property necessitating an immediate demolition.
On April 17, 2008, the City demolished the house and accessory structure. Kinnison received a telephone call from Mr. Cuellar of Cuellar Foundation, which had been contracted by Kinnison to repair the foundation of the house and had begun repairing the property on April 16, 2008. While Mr. Cuellar was present, the City's demolition crew arrived and demolished the house and accessory structure. City records do not indicate a permit or application for foundation work was obtained for the property. On April 28, 2008, the City sent post-demolition written notice to the Deepak Land Trust, which was listed as the owner of record for the property.
Kinnison claims the demolition of the property violated the procedures established in Article VIII, Section 6-175 of the City of San Antonio Code of Ordinances ("the ordinance").
Kinnison filed suit against the City, Archer, Constantino, and Hernandez in the 73rd Judicial District Court of Bexar County, Texas.
The Court dismissed certain claims against the individual defendants
The individual Defendants, Defendant City of San Antonio, and Plaintiff moved for summary judgment on June 7, 2010, on the remaining claims in this case.
Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden is on the moving party to show that "there is an absence of evidence to support the nonmoving party's case." Freeman v. Tex. Dep't of Criminal Justice, 369 F.3d 854, 860 (5th Cir.2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). "[I]f the movant bears the burden of proof on an issue . ., he must establish beyond peradventure all of the essential elements of the . . . [claim] to warrant judgment in his favor." Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir.2002) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)) (first ellipses and bracket added).
Once the moving party meets its initial burden, the nonmoving party "must . . . set out specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e); Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.1994). To avoid summary judgment, the nonmoving party must adduce admissible evidence that creates a fact issue concerning the existence of every essential component of that party's case and unsubstantiated assertions of actual dispute will not suffice. Thomas v. Price, 975 F.2d 231, 235 (5th Cir.1992). The opposing party cannot establish a genuine issue of material fact by resting on the mere allegations of the pleadings. Hulsey v. State of Texas, 929 F.2d 168, 170 (5th Cir.1991). The Court reviews all facts in the light most favorable to the nonmoving party. First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 181 (5th Cir.2009).
Kinnison's remaining claims against the individual Defendants are: (1) violation of the city ordinance; (2) violation of Chapter 214 of the Texas Local Government Code; and (3) violations of the Texas Constitution.
The City of San Antonio previously moved to dismiss the individual Defendants from this suit pursuant to Section 101.106(e) of the Texas Civil Practice & Remedies Code.
In his complaint, Kinnison alleges that the Defendants violated Section 6-175 of the City of San Antonio Code of Ordinances by (1) failing to provide the property owner notice of the accomplished abatement, (2) failing to notify the City's Dangerous Structure Determination Board of the abatement, and (3) "applying the ordinance in an ad hoc or capricious basis" by previously designating and then de-designating the house as an imminent danger.
Under Texas law, courts construe municipal ordinances in the same manner that they construe statutes. Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex.2002). Texas courts "apply a `strict rule of construction' to statutory enforcement schemes and imply causes of action only when the drafters' intent is clearly expressed from the language as written." Witkowski v. Brian, Fooshee and Yonge Props., 181 S.W.3d 824, 831 (Tex.App.-Austin 2005, no pet.) (citing Brown v. De La Cruz, 156 S.W.3d 560, 567 (Tex.2004)). Plaintiff admits and a review of the ordinance shows that the city ordinance did not provide for an express private right of action. Moreover, the language of the ordinance did not indicate any intent to create a private cause of action. The language merely authorized officials to conduct a summary abatement procedure in an emergency and outlines the procedures necessary to execute the abatement. The ordinance does not reference the property owner nor does it provide for a penalty for failure to adhere to the ordinance. Kinnison argues, without providing the Court any citation, that the City's Dangerous Structures Determination Board "allows for some judicial review of the [Dangerous Structures Determination Board's] decision making," which he argues would allow the Court to infer that judicial redress is justified. Plaintiff provides no support for the argument that such an inference is justified absent any clear intent to the contrary. See Brown, 156 S.W.3d at 563. Kinnison's unsupported claims that "great harm" justifies a private cause of action is likewise unsupported. "The fact that a person has suffered harm from the violation of a statute does not automatically give rise to a private cause of action in favor of that person." Id. (citing Cannon v. Univ. of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)).
Kinnison asserted a myriad of claims under Chapter 214 of the Texas Local Government Code, claiming that (1) the individual Defendants did not follow the prescribed measures to locate and notify him in violation of Section 214.001 of the Texas Local Government Code,
The individual Defendants are correct that Section 214.0011 is inapplicable to this case,
The individual Defendants move for summary judgment on Kinnison's claims that they violated Article I, Section 19 of the Texas Constitution.
Kinnison alleges that the individual Defendants violated Article I, Section 17 of the Texas Constitution, which provides that "[n]o person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made . . . ." TEX. CONST. art. I, § 17. The individual Defendants move for summary judgment, arguing that official immunity bars violations of the Texas Constitution asserted against individuals and that Kinnison has no evidence to assert a claim against them.
Official immunity is an affirmative defense. See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 423 (Tex. 2004). "Texas law provides that a governmental employee is entitled to official immunity for `(1) the performance of discretionary duties (2) that are within the scope of the employee's authority, (3) provided that the employee acts in good faith.'" Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 437-38 (5th Cir. 2008) (quoting Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex.2002)).
Reyes Hernandez served as the Supervisor for the Dangerous Premises Section of the City of San Antonio Housing & Neighborhood Services Department.
In a previous order, the Court stated that the demolition of the Kinnison's property was not based on J. Barry Archer's approval and exhibits demonstrate that he was not involved in the demolition.
Likewise, Plaintiff fails to present any evidence to create a material issue of fact on Mike Constantino's personal liability. While Constantino was involved with a structural analysis report that cited deficiencies in the structures at 332 East Myrtle Street in 2006, he did not participate in the emergency demolition conducted in 2008 nor did he supervise the inspectors.
Kinnison has failed to establish any of his claims on summary judgment against Defendants J. Barry Archer, Mike Constantino, or Reyes Hernandez, and he has not presented any evidence that would create an issue of material fact regarding their individual liability. Consequently, the Court grants summary judgment in favor of the individual Defendants.
Plaintiff's remaining claims in this case against the City are: (1) violation of Section 214.001 of the Texas Local Government Code; (2) violation of Article I, Section 17 of the Texas Constitution; (3) violation of procedural due process pursuant to the Fourteenth Amendment of the United States Constitution; (4) violation of the Fourth Amendment of the United States Constitution, and (5) violation of the Takings Clause of the Fifth Amendment of the United States Constitution.
Plaintiff moves for summary judgment on his claim that the City violated Section 6-175 of the City of San Antonio Code of Ordinances.
Section 214.001 permits a municipality to enact ordinances regarding buildings that are "dilapidated, substandard, or unfit for human habitation."
Kinnison fails to provide the Court with any reason why Section 214.001 applies and Section 214.002 does not apply; he merely lists the ways in which the City violated the provisions of Section 214.001. None of Kinnison's chronology is relevant if Section 214.001 is inapplicable. The City states that the requirements of Section 214.001 do not apply because it made the determination that the structure posed a danger to persons or property. The City provides evidence that its inspectors considered the structures an immediate danger, warranting their immediate demolition. The City relies heavily on the argument that "prior notice is not constitutionally required when there are exigent circumstances that do not allow a municipality to provide notice or hearing prior to the demolition of a property" based on the "exercise of their police powers."
The parties are conflating issues regarding Plaintiff's claim pursuant to Section 214.001. The first issue is: In light of the facts of this case, whether Kinnison may pursue a claim for monetary damages pursuant to Section 214.001 of the Texas Local Government Code. The second issue being raised by the City, but unaddressed by Plaintiff, involves its authority to demolish a structure, as authorized under Section 214.002, without prior notice because of exigent circumstances. Consideration of the second issue requires evaluation of a third issue: whether the findings of the City meet the requirements of a public emergency or presented exigent circumstances to warrant the immediate demolition of the Kinnison property. The second and third issues will be resolved in the subsequent sections.
In this section, the Court focuses on whether Kinnison may pursue a claim pursuant
It is not enough, however, for the City to declare that it acted pursuant to another statute, in this case Section 214.002, to avoid judicial review under Section 214.0012. In Carlson v. City of Houston, a Texas appellate court held that a city's order for residents to vacate an apartment building pursuant to Section 214.216—a statute with no related authorization for judicial review that authorizes a municipality to enact an ordinance adopting the International Building Code—did not preclude judicial review under Section 214.0012. Carlson v. City of Houston, 309 S.W.3d 579, 587-88 (Tex.App.—Houston [14th Dist.] 2010, no pet.). The City claimed that "emergency circumstances" necessitated its reliance on Section 214.216, but the court found that the record did not demonstrate that an emergency existed, judicial review did not impede the municipality's ability to issue its order for residents to vacate the property, it would not hamper the city's ability to enforce its building codes, and it would not burden the courts. Id. Likewise, it is not enough for the City of San Antonio to merely claim that it is acting in an emergency situation to avoid judicial review.
In any case, Kinnison seeks "monetary damages" for the City's violation of the statute. Here, the statute limits a court to "issue a writ of certiorari directed to the municipality to review the order of the municipality" and to "reverse or affirm, in whole or in part, or . . . modify the [municipality's] decision" under the substantial evidence rule. TEX. LOCAL GOV'T CODE § 214.0012.
The Court assumes that Kinnison is arguing that the City should have followed Section 214.001 because the state of his property did not constitute a public emergency that would warrant immediate demolition without pre-demolition notice. Under this assumption, the statute does not provide for a private cause of action for monetary damages against the City for failure to follow the procedures or enact an ordinance that meets the requirements of Section 214.001.
As a result, the Court grants summary judgment in favor of the City on Plaintiff's claim for monetary relief pursuant to Section 214.001 of the Texas Local Government Code.
Article I, Section 17 of the Texas Constitution provides that "[n]o person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made . . . ." TEX. CONST, art. I, § 17; see also Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) ("The Constitution itself is the authorization for compensation for the destruction of property . . . ."). Whether a taking or damaging of property has occurred in violation of Article I, Section 17 of the Texas Constitution is a question of law. Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 644 (Tex. 2004). "It is fundamental that, to recover under the constitutional takings clause, one must first demonstrate an ownership interest in the property taken." Id. at 644. A plaintiff must prove that "(1) the government's intentional acts (2) resulted in a taking of the plaintiff's property (3) for public use." Patel v. City of Everman, 179 S.W.3d 1, 8 (Tex.App.-Tyler 2004, pet. denied). The term "public use" includes matters of public health and safety. City of Houston v. Crabb, 905 S.W.2d 669, 674 (Tex.App.-Houston [14th Dist.] 1995, no writ).
Here, it is undisputed that Kinnison owned the property.
The City, however, defends that its actions are justified by its police power to preserve public safety. Once the Plaintiff
Here, the only admissible evidence before the Court establishes that the structures posed a nuisance. The City's inspectors and officials state in affidavits that the structures posed an imminent danger to property and persons. Photographs and checklists chronicle the multiple deficiencies with the property. The city inspectors evaluated Kinnison's property on April 8 and 10, 2008. The City's officials signed their affidavits declaring the property an imminent danger on April 15, 2008, and April 16, 2008. The City demolished the structures on April 17, 2008.
Previously, the Court noted that Kinnison testified that work had begun on the foundation of the property the day before the demolition. The Court interpreted this reference to question whether the City could show that the structures on the property posed a nuisance on the day the City demolished them. The City argues that in spite of this, the only admissible evidence establishes that the structures were a nuisance when inspected, and by extension, on the day they were demolished. While there is a reference to some work being done on the property the day before and the day of the demolition, there is no affidavit, testimony, or evidence that this work resulted in the structures no longer being a nuisance.
The City is correct. Plaintiff presents no evidence to counter the City's evidence that the structures constituted a nuisance. No affidavit or testimony discusses how Plaintiff remediated the property so that it no longer constituted a nuisance on the day the City demolished the structures. While the Court has a reference to an individual working on the property, Plaintiff has failed to chronicle the work conducted or whether or not this work raised the structures to a standard that they no longer constituted a nuisance on the day the City demolished them.
In light of the standards for summary judgment, the requirements for the City to defend its demolition of the structures under Texas law, and Kinnison's failure to produce any evidence to create a material issue of fact to the contrary, Kinnison is not entitled to compensation for the City's demolition of his property because the City of San Antonio demolished structures that constituted a nuisance in accordance with its police powers.
Now that the Court has ruled that Kinnison's claim has failed under Article I, Section 17 of the Texas Constitution, his Fifth Amendment takings claim is now ripe. In its analysis of jurisdiction on this matter, the Court stated:
Order at 19-20 n. 14.
"The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth, provides that private property shall not `be taken for public use, without just compensation.'" Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). Compensation is not required if the property constituted a nuisance. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); see also Vulcan Materials Co. v. City of Tehuacana, 369 F.3d 882, 892 (5th Cir.2004) ("Thus, under federal law, even if the current value of the claimant's property has been destroyed, the claimant cannot recover if the `background principles of the State's law of property and nuisance' would have prohibited that activity as a nuisance (the `nuisance exception')." (quoting Lucas, 505 U.S. at 1029, 112 S.Ct. 2886)).
As previously noted, the only admissible evidence before the Court establishes that Kinnison's property constituted a nuisance that the government could abate by virtue of its police powers. See supra Part B.3. Kinnison is therefore unable to recover just compensation for the value of the demolished structures because it constituted a nuisance and it was within the authority of the City to abate the nuisance.
The Fourteenth Amendment prohibits a state from depriving a person "of life, liberty, or property, without due process of law." U.S. CONST, amend. XIV, § 1. In its previous order, the Court outlined the requisite standards for a party to bring a claim for procedural due process. The Court wrote:
Order on Mot. for Summ. J. at 17-18. The Supreme Court has "recognized that prior to an action which will affect an interest in life, liberty, or property protected by the Due Process Clause of the Fourteenth Amendment, a State must provide `notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983).
Here, Kinnison has a legally protected interest. Kinnison was the legal owner of the structures demolished by the City. Having identified a protected property interest, Kinnison has proven that governmental action deprived him of that interest. The City has admitted to, and the evidence before the Court establishes, that the City of San Antonio demolished the structures on Kinnison's property. Prior to taking that action, the City was required to provide notice reasonably calculated to apprise Kinnison of the planned demolition and afford him an opportunity to present his objections. As a mortgagee of the property, Kinnison's identity was reasonably identifiable; therefore, he was entitled to notice by mail or personal service. See Adams, 462 U.S. at 798, 103 S.Ct. 2706. In any case, the City admits it provided no notice of its planned demolition; not even constructive notice.
As previously noted, the City relies heavily on the defense that "prior notice is not constitutionally required when there are exigent circumstances that do not allow a municipality to provide notice or hearing prior to the demolition of a property" based on the "exercise of their police powers."
The issue here is whether an emergency situation existed that warranted the demolition of the property without pre-deprivation notice. If no emergency situation existed to justify the City's demolition of the structures on Kinnison's property without notice, then the City's actions failed to provide Kinnison with procedural due process.
City inspector Alice Guajardo inspected the property on April 8, 2009. Considering the property to be "possibly a dangerous premise in need of summary abatement", Guajardo requested that a building inspector evaluate the property. Building inspector Ramiro Carrillo inspected the property on April 10, 2008. City officials approved the demolition of the property a week after Guajardo's initial inspection with the final approval being signed on April 16, 2008. Within that time, Alice Guajardo obtained the record owner of the property based on records held by the Bexar County Appraisal District. Guajardo contacted the person listed as the owner and was told that the property had been sold. These attempts at notice defeat the City's own argument that pre-demolition notice was not possible. Furthermore, the number of days the City allowed to elapse between Guajardo's and Carrillo's assessments of the property and the date of the demolition further impugns the City's claim that exigent circumstances precluded pre-deprivation notice. Moreover, the City provided no type of contemporaneous notice to Kinnison. A predeprivation process for Kinnison would not have been impossible or impracticable because the City could have proceeded under provisions for declaring the property a nuisance as outlined in Texas law. The evidence before the Court establishes that the City's actions violated Kinnison's right to procedural due process.
Kinnison moves for summary judgment on his claim that the City violated the Fourth Amendment. The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. CONST. amend. IV; Ker v. California, 374 U.S. 23, 30-34, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Although the motion fails to provide the Court with any substantial analysis on his claim, the Court can evaluate whether Kinnison established his Fourth Amendment claim based on the evidence provided by the parties in their motions. "A `seizure' of property . . . occurs when `there is some meaningful interference with an individual's possessory interests in that property.'" Soldal v. Cook County, Ill., 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)). This issue is undisputed given that the City demolished the structures on Kinnison's
"`The public interest demands that all dangerous conditions be prevented or abated.'" Id. (quoting Camara, 387 U.S. at 537, 87 S.Ct. 1727). It is reasonable for the City of San Antonio to maintain minimum property maintenance standards to protect persons and neighboring property. "Nevertheless, a city may not arbitrarily enter abatement orders or declare the existence of nuisances with no underlying standards." Id. at 652-53. In this case, the evidence demonstrates that the City of San Antonio declared the property a nuisance after inspection by two City inspectors whose recommendations were reviewed and accepted by other City officials. The evaluation of the structures on the property yielded a determination that they posed a danger to persons and other property; a determination made pursuant to the City's police power.
While the City's determination that the structures on Kinnison's property constituted a nuisance is reasonable, the City's finding that the property required immediate demolition even though the City's actions failed to reflect any emergency places the reasonableness of the City's procedures into question. The City failed to provide Kinnison with notice, an opportunity to contest the determination, time to repair the property, any chance to seek other remedies, hearings, or any prior judicial review. The City's failure to provide Kinnison with procedural due process undercuts the reasonableness of the City's demolition of the structures on his property.
The Fourth Amendment protects the property owner's expectations of privacy—the property owner's private interests—that society recognizes as legitimate. Id. at 653 (citing New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S.Ct. 733, 741, 83 L.Ed.2d 720 (1985)). As the owner of an unsecured, vacant, dilapidated property, Kinnison's expectation of privacy is diminished in relation to those of other property owners. The evidence before the Court shows an unsecured property with a collapsing roof and buckling foundation visible from the public sidewalk with open spaces and holes in the walls to allow public access. Since the property was uninhabited and vacant, the inspections did not invade Kinnison's privacy. However, Kinnison still maintained a private interest in the structures on his property; an interest that the City destroyed.
While "an exigency of sufficient proportions" may "render a warrantless entry `reasonable,'" the length of time the City expended in contemplating the appropriate remedial measure before demolishing Kinnison's property fail to prove that any exigent circumstance warranted its demolition. Cf. Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (discussing exigent circumstances that justify warrantless entry). The actions of the City fail to establish any reasonable basis for the seizure, i.e., the demolition, of Kinnison's property. Consequently, the Court find that the City has violated Kinnison's
Kinnison has moved for summary judgment on his substantive due process claim even though the Court already granted summary judgment in favor of the City on this issue.
Recovery for the violation of constitutional rights is based on establishing a claim pursuant to 42 U.S.C. § 1983. Local governments may be liable for relief for official policies that deprive an individual of his constitutional rights. Monell v. Dep't of Social Servs. of the City of N.Y., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To establish a claim pursuant to Section 1983 against a municipality, a plaintiff must show "`(1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right.'" Bustos v. Martini Club, 599 F.3d 458, 467 (5th Cir.2010). The evidence and pleadings before the Court establish the elements of a Section 1983 claim against the City. The City of San Antonio admits to demolishing the structures on Kinnison's property pursuant to its authority as a home rule municipality with the authority to abate nuisances pursuant to its ordinances, statute, and police powers. Municipal authorities, from the inspectors to department directors, acted within their official capacities to order the demolition Kinnison's property without prior notice even though the property was merely a nuisance and did not constitute an emergency situation. As a result of the City's actions, it deprived Kinnison of procedural due process and subjected him to an unreasonable seizure of his property. As a result, the evidence and admissions before the Court establish Kinnison's claim against the City pursuant to 42 U.S.C. § 1983.
In Kinnison's response to the motions for summary judgment, he includes the affidavit of Paul Kinnison, Jr., an architect who happens to be the Plaintiff's father. In the affidavit, Paul Kinnison discusses his assessment of the soundness of the structure after a personal visit to the property in March 2008. Kinnison
Defendants move to strike Plaintiff's witness since he has never designated him an expert witness nor has Plaintiff disclosed that he planned to use Paul Kinnison's testimony to respond to the conclusions of the City's inspectors. Pursuant to Rule 37(c)(1) (A): "If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." FED. R. CIV. P. 37(c)(1)(A). The Scheduling Order set a deadline of February 18, 2009, for the parties to designate their experts, and discovery concluded on March 5, 2010. Plaintiff has not supplemented his discovery responses or sought leave to amend his expert designation. Plaintiff responds, without support, that Defendants are not prejudiced because they were aware that Paul Kinnison was an architect who had been to the property. In the alternative, Plaintiff seeks to introduce Kinnison's testimony as "complex lay opinion."
Contrary to Plaintiff's unsupported claim, his failure to designate expert witnesses at the appropriate time is highly prejudicial since Defendants had no notice of Plaintiff's planned designation. Moreover, Kinnison's affidavit conveys his assessment of the property based on his expertise as an architect; the affidavit does not merely recount what he witnessed. Plaintiff is not providing Paul Kinnison's affidavit as if he is a fact witness. Plaintiff is providing the affidavit for Kinnison's ultimate opinions. The deadline for designating expert witnesses has long since passed, the discovery deadline has expired, and trial for remaining issues looms. "[A]n attorney should be cognizant of the appropriate methods and procedures followed in federal court, including any court imposed deadlines." Melendez-Alvarado v. Chertoff, No. EP-07-CA-374-FM, 2008 WL 3914821, at *2 (W.D.Tex. Jul. 3, 2008).
The individual Defendants' motion for summary judgment is GRANTED. No claims remain against the individual Defendants. The Defendant City's motion for summary judgment is GRANTED IN PART AND DENIED IN PART while Plaintiff's motion for summary judgment is GRANTED IN PART AND DENIED IN PART.
The Court grants summary judgment in favor of the City and against Kinnison on his claims for liability under Chapter 214 of the Texas Local Government Code; violation of Article I, Section 17 of the Texas Constitution; and violation of the Takings Clause of the Fifth Amendment. The Court has already granted summary judgment in favor of the City and against Kinnison on Kinnison's claims that the City violated Section 6-175 of the San Antonio Code of Ordinances and substantive due process.
The Court grants summary judgment in favor of Kinnison and against the City on his claims that the City violated procedural due process under the Fourteenth Amendment of the Constitution and that the City conducted an unreasonable seizure of property in violation of the Fourth Amendment.
The only issue for trial involves damages. Plaintiff Paul Kinnison and the Defendant City of San Antonio shall each submit a trial brief regarding the appropriate measures of damages on or before August 18, 2010. Response briefs may be submitted on or before August 24, 2010.
It is so ORDERED.
SAN ANTONIO, TEX., CODE § 6-175 (2002).
Order on Mot. for Summ. J. at 13.
Id. at 13-14.
(a) A municipality may, by ordinance, require the vacation, relocation of occupants, securing, repair, removal, or demolition of a building that is:
(b) The ordinance must:
TEX. LOCAL GOV'T CODE ANN. § 214.001.
(a) If the governing body of a municipality finds that a building, bulkhead or other method of shoreline protection, fence, shed, awning, or other structure, or part of a structure, is likely to endanger persons or property, the governing body may:
Id. § 214.002.
