Affirmed and Opinion Filed July 3, 2014 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-12-01608-CV MIKE JABARY, Appellant V. CITY OF ALLEN, Appellee On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-01635-2012



### MEMORANDUM OPINION Before Justices Bridges, Francis, and Lang-Miers Opinion by Justice Francis Mike Jabary appeals the trial court’s summary judgment in favor of the City of Allen on its plea to the jurisdiction. In five issues, Ja bary contends the trial court erred by granting summary judgment because th e City did not tell Jaba ry he had a right to a ppeal or had to exhaust his administrative remedies, the trial court shoul d have granted additional time for discovery, and fact issues preclude summary judgment. 1 We affirm the trial court’s judgment. In early January 2009, Jabary applied for a commercial certificate of occupancy for a restaurant in Allen. About a week later, he submitted an application for a building permit and certificate of occupancy stating th e building would be used for a re staurant and hookah bar. On January 29, 2009 Jabary was issued a certificate of occupancy for the building “for use as a

1 During oral argument, Jabary withdrew his first issue regarding whether the City coul d claim sovereign immunity from takings c laims.–2– RESTAURANT (NO DRIVE-IN OR THROUGH).” When it later became apparent to City officials that Jabary’s business was primarily a hookah bar and was not capable of being used as a restaurant, chief building offici al Bret McCullough issued a “No tice of Violation” tag, stating Jabary was operating the business in violation of the certificate of occupancy because the “establishment does not meet criteria for rest aurant use.” The notice, dated June 9, 2010, effectively revoked Jabary’s cer tificate of occupancy. The fo llowing day, the Allen Police Department issued a written statement that the certificate of occupanc y had been revoked after “City staff determined by the lack of food, the un sanitary conditions of the food preparatory area, and the out of date food products that were not fit for human cons umption [that] Jabary was not operating as a restaurant.” Jabary sued the City in federal and state c ourts. In his state lawsuit, he alleged both private and public takings (as well as an offici al oppression claim which he later abandoned). The City filed a motion for summary judgment on the ground that, because Jabary had not exhausted his administrative remedies, his claim was not ripe. In response, Jabary argued he was not required to exhaust his remedi es because he did not get prope r notice and any appeal would be futile. After the tr ial court granted summary judgment in fa vor of the City, Jabary filed this appeal. Because issue four is dispositive, we begi n with the question of whether Jabary was required to exhaust his administrative remedies be fore proceeding with th e merits of his case. Although the Texas Constitution waives immunity for suits brought under the takings clause, this does not mean that a constitutio nal suit may be brought in every instance. City of Dallas v. VSC, LLC , 347 S.W.3d 231, 236 (Tex. 2011). The le gislature’s “broad authority to prescribe compensatory remedies for takings is well-established, so long as those methods comply with due process and othe r constitutional requirements.” Id . When the legislature–3– creates such a statutory procedure, a party may s eek recourse by filing a c onstitutional suit only where the statutory procedure proves inadequate. Id .; see Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 929 (Tex. 1998) (“[I]n or der for a regulatory takings clai m to be ripe, there must be a final decision regarding the application of the regulations to the property at issue.”); see also Williamson Cnty. Reg’l Planni ng Comm’n v. Hamilton Bank , 473 U.S. 172, 194 (1985) (“The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation.”). When a provision or proce dure exists for compen sation or recourse, a constitutional claim is necessarily premature. See VSC, LLC , 347 S.W.3d at 236 (citing Williamson Cnty ., 473 U.S. at 194–95). Thus, as a general rule, when a party asserts a takings claim based on an allegedly improper administrativ e determination, he must first appeal that determination and assert his taki ngs claim in that proceeding. Patel v. City of Everman , 361 S.W.3d 600, 601 (Tex. 2012) (per curiam). A pa rty may forgo the administrative determination, however, if an exception, such as futility, is established. See Mayhew , 964 S.W.2d at 929,
931

− 32. The City moved for summary j udgment, asserting a plea to th e jurisdiction. Specifically, the City argued the trial court lacked subject ma tter jurisdiction over Jabary’s claims because he failed to appeal the revocation of his certificate of occupancy to the City board of adjustment and, as a result, Jabary’s claims were not ripe. In support of its motion, the City filed copies of the City’s municipa l code and the Allen land development code, along with the affidavits of city employees Bo Bass and Les Folse, and Jabary. Section 1.08 of the municipal code provi des a certificate of occ upancy is required to conduct business within a building. A LLEN , T EX ., C ODE § 1.08.1. It also provides that the City’s chief building official “may, in writing, suspend or revoke a certificate of occupancy” when it is determined that the structure or any portion of the same “is in violation of any ordinance or–4– regulation or any provision of this C ode or the building codes . . ..” Id . § 1.08.9. Section 2.02.1, in conformity with the local gove rnment code, establishes the fi ve-member board of adjustment and provides that a party affected by “any decisi on of the chief building officer” may file an appeal within fifteen days of the da te of the decision with the board. Id . § 2.02.1; T EX
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. G OV ’ T C ODE A NN . § 211.008

− .010 (West 2008). The municipal code also provides that, during the pending appeal, “all proceedings in furthera nce of the action appealed from” are stayed.
A LLEN , T EX ., C ODE § 2.02.1. Bo Bass, the director of community developmen t, is responsible for administering (1) the City department that handles planning and development functions, (2) the City’s land development code, including the zoning code provisions, and (3) the City depart ment overseeing City codes applicable to health and building c ode requirements, including those applicable to restaurants. According to Bass, Jabary was issu ed a certificate of occupancy for a restaurant; thus, the “principal or primary or most important or most consequential aspect of the business operated by [Jabary] must be a restaurant, instead of some othe r use.” Bass stated Jabary’s principal use was a hookah lounge where the prim ary “business operati on was the selling of tobacco or smoking products which he then allowed his patrons to smoke or consume on the premises using a hookah.” While Jabary’s lounge had a retail sales counter, it did not have working sinks and there was “little or no food on the premises that was fit for consumption.” Based on this and other information, Bass said it appeared Jabary did not have an operating restaurant and “was not capable of having an operational restaurant meeting health code requirements for a restaurant.” Bass also disc ussed the appeals process available to a person whose certificate of occupancy is revoked and testified Jabary “h as never appealed, nor has any other person acting on behalf of Mr. Jabary appealed the re vocation of his Certificate of Occupancy.”–5– Les Folse, the City code inspection supervis or, said he was involved in inspections of businesses to determine compliance with City code requirements since February 2006. Folse wrote out the information on Jabary’s notice of violation, but it was signed and issued by McCullough, the chief building official. According to Folse, he and McCullough were both present at the time and handed the notice to Jabary at his place of business on June 9, 2010. In his affidavit, Jabary claimed he sold food, drinks, and tobacco products as “permitted by its Certificate of Occupancy” but conceded his business “ope rated as a hookah bar since its inception.” This evidence establishes that, although Jabary was issued a certificate of occupancy for a restaurant, he was operating a hookah bar. It also shows Jabary was handed the notice of the revocation on June 9 but did not fi le an appeal with the board of adjustment within fifteen days of that date. Although Jabary fi led a response to the motion, he did not offer any evidence to refute what the City offered nor did he provide evidence or any argument as to why an appeal to the board of adjustment would have been futile . Because the City conclusively established Jabary failed to exhaust his administrative re medies, the trial court did not err by granting summary judgment in the City’s favor. In reaching this conclusion, we reject Jabary’s argument he was deni ed discovery in the trial court that would help him esta blish futility. In his appellate br ief, Jabary refers to a single 1981 federal case but does not analy ze that case or apply the law to the facts of his case. He does not address the standard of revi ew or state law on the issue and we are not responsible for doing the legal research. Bolling v. Farmers Branch Indep. Sch. Dist. , 315 S.W.3d 893, 895 (Tex. App

― Dallas 2010, no pet.). Under these circumstances, we conclude Jabary has failed to properly brief this issue on appeal. See T EX
. R. A PP
. P. 38.8(i).–6– Furthermore, during the hearing on the motion fo r continuance, Jabary represented to the trial court that he had “about 30 requests for production,” including the depositions of the mayor, chief building officer, the chief of planning an d development, and several “high-ranking city officials” that could be tied directly to the fu tility argument, yet he made no attempt or argument to show how any of these depositions would establ ish futility. He did not claim any of those individuals whose depositions he sought was on th e board of adjustment or had any influence over the board, and in fact, Jabary conceded as much to the trial c ourt. In addition, Jabary did not file a discovery requ est about the board of ad justment. When asked by the trial court, Jabary claimed that, even without a continuance, he had documentation in his possession that indicated the finality of the decision and established his futility exception; however, he does no t cite us to that evidence. Finally, when the trial court noted that futility needed to be more than “a foregone conclusion” or seeing “the handwriting on th e wall,” Jabary argued, without any supporting evidence, that an appeal was futile because the board of adjustment had no authority to change the result. We note, however, th e Allen municipal code provides th at, when an appeal is filed, The board shall decide the appeal within 90 days after placement on its agenda, after which time the request shall be d eemed approved. The board may reverse or affirm in whole or in pa rt or modify the order, requirement, decision, or determination from which an appeal is taken and make th e correct order, requirement, decision or determination. Contrary to Jabary’s assertions, the plain language of the code indi cates the board is vested with the authority to make the “correct” decision, in cluding reversing a previ ous order, decision, or determination, including the revocati on of a certificate of occupancy. See also T EX
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. G OV ’ T C ODE A NN . § 211.009. For these reasons, we conc lude this argument lacks merit. We likewise reject Jabary’s argument inhis second issue that the “lack of postdeprivation process triggers [the ] exhaustion exception.” Under th is argument, Jabary claims he was not required to file an appeal with the board of adjustments because no one told him he–7– could appeal. We first note that Jabary has waived this issue because he did not raise it below. See Fed. Deposit Ins. Corp. v. Lenk , 361 S.W.3d 602, 611 (Tex. 2012); In re B.N.L.-B. , 375 S.W.3d 557, 564 (Tex. App

― Dallas 2012, no pet.). Furthermore, both the United State Supreme Court and the Texas Supreme Court have cons idered and rejected similar arguments. See City of West Covina v. Perkins , 525 U.S. 234, 241 (1999) (“Once the pr operty owner is informed that his property has been seized, he can turn to th ese public sources to le arn about the remedial procedures available to him. The City need not ta ke other steps to inform him of his options.”); VSC, LLC , 347 S.W.3d at 238

− 39 (“The Legislature provided a st atutory remedy for the return of the property that was easily discoverable from public sources.”). Here , the City gave Jabary notice of the revocation and the City municipal code provided a statutory remedy that was easily discoverable from public sources. See T EX
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. G OV ’ T C ODE A NN . § 211.008

− .011; A LLEN , T EX ., C ODE § 2.02.1. The City was under no duty to invite Jabary to appeal to the board of adjustment. See VSC, LLC , 347 S.W.3d at 239. We overrule Jaba ry’s second and fourth issues. In light of our disposition of i ssues two and four, we need not address Jabary’s remaining issues.
See T EX
. R. A PP
. P. 47.4. We affirm the trial court’s summary judgment.

121605F.P05 /Molly Francis/ MOLLY FRANCIS JUSTICE–8– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MIKE JABARY, Appellant
No. 05-12-01608-CV V. CITY OF ALLEN, Appellee On Appeal from the 219th Judicial District Court, Collin County, Texas Trial Court Cause No. 219-01635-2012. Opinion delivered by Justice Francis, Justices Bridges and Lang-Miers participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee CITY OF ALLEN recove r its costs of this appeal from appellant MIKE JABARY.
Judgment entered July 3, 2014