Jorge Rodriguez v. City of Fort Worth, 07-16-00037-CV

Background

Rodriguez bought a substandard, condemned house in Fort Worth in December 2012; the City’s prior condemnation order had been filed in the county deed records before his purchase.
The Building Standards Commission had ordered the structure repaired by October 24, 2012, or demolished; the order authorized the City to demolish at owner expense.
In May–June 2013 Rodriguez received contradictory notices: a demolition Certificate of Appropriateness and later an in-person City employee statement that demolition was not scheduled.
On June 28, 2013 the house was demolished by a private contractor retained by the City; Rodriguez’s subsequent administrative claim was denied.
Rodriguez sued under the Texas Tort Claims Act (TTCA) alleging negligent/intentional demolition via motor-driven equipment and also argued he had alleged a constitutional takings claim; the City filed pleas to the jurisdiction and supplied the demolition contract designating the contractor as independent and an affidavit that no City employees operated equipment.
The trial court granted the City’s plea to the jurisdiction dismissing Rodriguez’s claims with prejudice; Rodriguez appealed and the appellate court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether TTCA waived immunity because damage “arose from” City employees’ use/operation of motor-driven equipment	Rodriguez: demolition resulted from motor-driven equipment used/operated by City employees (or under City control), so TTCA waiver applies	City: demolition performed by independent contractor; contract and affidavit show City employees did not use/operate equipment or control contractor	Held: No waiver — record shows independent contractor performed demolition and no City employee used/operated equipment or controlled the contractor
Whether Rodriguez alleged a constitutional takings claim (Art. I, §17) sufficient to defeat immunity	Rodriguez: pleadings referenced lack of notice/due process and thus alleged a takings claim	City: demolition remedial to abate a public-health hazard, not a taking for public use; plaintiff didn’t allege facts showing government took/destroyed property for public use	Held: Not a takings claim — plaintiff failed to plead demolition was for public use or allege essential elements of a constitutional takings
Whether the trial court abused discretion by dismissing with prejudice without allowing amendment	Rodriguez: requested leave to amend to add jurisdictional facts in responses to supplemental pleas	City: plaintiff had opportunities to amend, and the record affirmatively negates jurisdiction so amendment would be futile	Held: No abuse — Rodriguez had reasonable opportunity to amend and defects were incurable (independent contractor/use-of-equipment and lack of public-use takings)

Key Cases Cited

Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (jurisdictional plea standards and when evidence may be considered)
Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (distinguishing immunity from suit and immunity from liability)
Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) (statutory waivers of immunity strictly construed)
LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49 (Tex. 1992) (meaning of "operation" and "use" of motor-driven equipment under TTCA)
Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384 (Tex. 2011) (elements of a constitutional takings claim)
County of El Paso v. W.E.B. Invs., 950 S.W.2d 166 (Tex. App.—El Paso 1997) (contrasting case where waiver found because county employees used city equipment to demolish property)