*1 Although denying in appellee mary judgment denied the State’s summary judgment. pleadings unsworn that the taxes constituted motion for property, claim his no contro court judgment the district verting affidavit or the State’s answer to judgment here rendered for reversed summary judgment motion refuted the the State. Appellee the burden certified claim. had incorrect, excessive, levy show the tax and rendered. Reversed presump illegal statutory or if the bur The further
tion was to overcome. levy upon appellee
den was show injury. v. his
worked to substantial State Bank, 282,
Federal Land Tex. 329 S.W. Cannon,
2d Arlington (1959); City of v. 566, (1954).
153 Tex.
271 S.W.2d
Appellee
did not controvert
al., Appellants,
HOUSTON et
OF
CITY
summary
in
judgment
State’s motion for
v
appellee
In
admitted
manner.
effect
affi
alleged
sworn
al., Appellees.
facts
the State’s
D. PARKINSON et
.
summary
supporting
davits
motion
14861.
No.
judgment.
Bank v. First
Farmer’s State
Appeals of Texas.
of Civil
Court
Waco,
Liberty, Tex.Civ.App.,
State Bank of
Pleadings
Dist.).
writ).
alone
(1st
(no
Appellee’s motion for showing incorporated exhibits ownership property
his and the lease the operator owner of or the amusement Appellee
business. affidavit showed night
that his property operated as a pertinent
club and that at times he knew property place of used amuse
his knowledge Appellee’s
ment. constructive pertaining tax admissions statutes upon fixed
taxes and liens conclusively
used will be business
presumed. appears only questions before questions law.
the trial court were fact ultimate
There was no material dispute upon controversy or parties before
showing made
court. trial court erred
We conclude appellee for sum- motion of
granting *2 Olson, City Atty.,
Wm. and Homer T. A. Bouldin, Supervisor, Trial Houston. Monteith, Edgar Charles E. Williams W. Houston, Solito, and Peter and William S. Antonio, Dobbins, P. San amicus curiae support rehearing. of motion for McCarty, Danny R. Edwards and B. Joel Houston, Jr., appellee. BELL, Chief Justice. en- appeal judgment
This is an from a any joining levying Alba, against Fish- owners on er, Donovan and Brinkman Streets streets, and paving Houston of said cancelling that had been assessments made, mak- holding void the ordinance ing the assessments. The jury findings based on notice on the by publication ments was Houston 20, 1963, Press; o’clock owning property February held at 11:00 all those on Chambers, following a. m. in the Council were not streets be levied February which assessments would heard at date abutting property in ac- pertaining 1963 on' matter *3 assessments; posed improvements cordance with the benefits enhanced and that gutters the curbs and were not constructed property. of each tract or This ordi- value specifications in accordance set with the properly published publication nance was ordinance; and, in pertinent forth in is made the Houston Press. attack No City passing in action of the Council complaint publication. The on the form of levying ordinance the assessments was only is that notice furnished this was capricious. and property and owners of the such is constitutionally sufficient to authorize brought The action was as class levy Council to an assessment. plaintiffs, 42(a) under Rule five named parties suing individually the named as and shows the record We should notice that representatives property own- of other three in the ordinance were listed there respective ers on their streets. The named Groups II I and groups Only of streets. plaintiffs D. Parkinson of Fisher were: L. are here involved. Street, A. of Mr. and H. Williams Mrs. Street; Bruhn of Brink- Donovan Richard of Group provided for construction I Street; man H. R. of Alba and Henderson cement stabi- gutters and 7-inch curbs and in in- Judgment Street. their favor asphaltic con- and hotmix lized base shell dividually representatives and as of Group I listed surfacing. Under crete property particular owners of their class Fisher, Alba Alba and Brinkman Streets. similarly situated. Brinkman in width. is shown be 37 feet 24 feet in width. Fisher is shown to be City defendants The feet the EPL Drive to of Golf Mayor. and then its to be 37 east the EPL is shown of of Golf width, termination feet in and from that urges Appellant the action could not have point point 442 the EPL to a feet east of class action. been maintained as Brinkman, 24 feet Fisher to be is shown 42(a) purportedly brought Rule but under in width. subdivision is not stated. We under which it be maintained un- are of view could portion designated Group II includes a spurious ac- (3) der class Subdivision in and addition Donovan Street sought tion. character of called improvements as for the same viding several; there be enforced for the class was for construction Group for in I calls and fact af- was a common of law sidewalks. fecting common re- rights the several and McDonald, sought. 1 Texas lief was Civil published Further, appears in 3.34.1, Practice, pages 347-351. We Sec. the rate of assess- ordinance the estimate of adequate for the representation also find estimate Group I the For ment to made. respective classes. feet was at for width surfacing foot, for a 37 per rate front 26, 1962, $5.58 On December This, under- as we foot ordinance, 62-1859, width was passed $7.39. deter- an No. it, cost the estimated stand includes necessity ordering mining the estimate paving gutter. curb and streets, including the pavement of certain Group Street that constituted Donovan was or- above named ones. ordinance included per front foot. This II was required published, $9.59 Article dered was shown Donovan Street sidewalks. The ordi- 1105b, Ann.Civ.St.Tex. Vernon’s feet width. gave that a nance notice ed case are that the passed Ordi- on trial April 17, On formally 63-529, by publication notice closed which nance No. Press; and Houston hearing, determined opportunity heard an levied assessments. pertaining to paragraph (f) In recited assessments; said benefit “all gutters curbs and were not constructed * * * be heard and all were heard specifications plans accordance with sufficiency, accuracy, matters as that the action of the regularity validity and all of passing levying ordinance *4 proceedings said and consider- were heard ment capricious. was and ed; City and the Council heard evi- trial position appellant is that the of parcel special dence as to benefits to each submitting any of the court error in was respective abutting property the and jury, being four contention issues the thereof enhanced value of said that not be novo but should trial should de property by improvements means of such be evidence rule. under substantial respective portion of the particular of the Also, the ac- it is that whether contended abuts, street or street on which same City arbitrary, tion al- Council was give and hearing did a full fair to all and legedly, being supported by not substantial heard; appearing evidence, is a of law be decided and did such hearing determine bene- by the court. fits aforesaid.” Paragraph (g) of the recited in ordinance if issue, inquiring special The first substance that assessment on a uniform only newspaper advertisement per amount equi- foot front be not City, should given by hearing notice of table because of difference in width the evi been submitted because not have streets, and because there are curbs and undisputed that this was dence is gutters to places constructed issues, Only the ex ultimate notice given. and not at others. Further it is recited dispute are in under istence of which adjustments that in the assessments had evidence, re This is no be submitted. been made because of the differences in it estab find error because we versible improvement is and no that lished as a matter of law. more than the amount in the enhanced resulting value to each posi take the Appellees seem to tract of land and the owner thereof from not notice alone does tion that constructive improvements. satisfy process therefore due of law and They cite proceedings are without effect. 2 Section again ordinance recites by the Texas Su are discussed cases that hearing evidence, pro- Fore, City v. preme Court in of Houston test and Tex., will not discuss 35. 412 S.W.2d We when there no protests were further offer- has analyze or because Court them offered, ed or desired to the rule to be understand done so. We objections protests closed. were not notice alone does constructive overruled Regularity and denied. of all practicable satisfy process where is due proceedings recited and direction is made personal notice. give some form of for the issuance reciting of certificates such re testifying lived at their had witnesses regularity securing lien the amount and as to spective many years addresses is fixed. assessed may practicable be assumed it was them it them. There is personal get notice to complaints appellees
The real as evi- evidence, however, along line petition no denced offer- and evidence 904 However, other sign owners. we also did know whether do not, only- though
understand the rule to be that had actual notice If did or not. conformity they constructive notice have accorded due would not been statute, process process However, due if the satisfied those who law. parties complaining had actual notice. who testified at those Fore, supra; v. of Corsi trial ac- were at Mills, (Tex.Civ.App.), cana 235 process S.W. 220 corded due insofar as notice was ref.; Bros., McAlexander v. Smith Those no- S.W. concerned. who had actual no dism.; 2d 530 Beatty (Tex.Civ.App.), may ground writ tice of course defend on such Co., v. Panhandle in any brought Construction to enforce S.W. suit (Tex.Civ.App.), writ ref. ments. erred the court Appellant contends also appears Under record here it inquiring Special No. submitting Issue Bruhn, plaintiffs, except all named Mr. abutting owning toas whether had appeared actual notice and at the hear at the ing February In addition to the pertaining to matter heard on plaintiffs, except Bruhn, Audrey named *5 Its improvements and assessments. posed Turner, Moers, Capps, Burnet Mrs. H. O. the appeal from position is that Ward, Mrs. Virgil L. P. Spaulding, C. W. de is not City Council trial action of Parsons, Street, all whom of lived on Fisher evidence substantial novo but under testified in the trial court that had evi- there was substantial whether rule and actual notice of the and attended is a law action supporting Council’s dence it. Page, Mrs. Garcia and Robert who J. evidence there was no question. It asserts Street, lived on Alba had actual notice. given not of was meaning a Page the hearing, attended but Mrs. Garcia a of giving recited the ordinance did not due of illness her husband. required parties as interested hearing to all Foreman, Mrs. A. H. Williams W. L. by law. Sr., Street, who lived on Donovan had ac tual notice. In' each instance we stat have hearing giv- is that position Appellees’ the parties ed had actual notice we mean pre- is a abutting property owners en to all acquired per it than means other any validity of requisite to the City. sonal notice furnished Some such to all not hearing was and a neighbors; see learned owners. survey made; ing being and one learned be through pub itof his Unquestionably wife who read desire, le- making known heard, on lished notice. entitled They are heard. to be entitled gally 1105b, by Article heard, provided The evidence the trial that a showed petition protesting proposed improve- question of 9, on Section as- proposed signed by conferred, ments was of the most the amount.of suf- accuracy, regularity, but on owners. All one of owners sessment proceedings validity Donovan Street of the ficiency such improvements. presented City was the hear- Council at connection with the appeal ing. petition obviously provides for signing Those section same any peti- or Too, had actual the assessment notice. another such contest amount of invalidity or insuf- inaccuracy, irregularity, presented tion that was Fisher, with reference signed by proceedings ficiency of the owners on 78% any Obviously improvements account of or “on Brinkman and Alba Streets. the discretion or within signers thing these had We are matter not actual notice. body”. governing not informed as which of the owners court, trial for the error provides Article Section case, to in this the evidence city have a basis of shall governing body of a voiding all assessments necessity render power to determine levy enjoining made that had been is a improvements. This determination because govern matter the discretion of not been made within that had ing of not to ing body. 9 seems While Section it cannot us before under evidence judicial allow review the exercise of arbitrary action of said the discretion, ex matter within Council’s an contention capricious, and is no pression the case of that it was fraudulent. 159, Blackbird, Tex.Civ.App., 394 S.W.2d might judicial such subject indicates read the entire statement of We have would, review. We are of the view will detail all of the testi facts. We but respect such review in this mony of each of the eleven who witnesses limited to a determination that Council’s concerning testified at the trial oc- what wholly capricious curred before or fraudulent because the Apart on February from the clearly private were in nature and not appellees that we notice contention of have public conceivably or could not confer insufficiency no- concerning above abutting benefit on the property. tice, appellees complaint the real seems to have been that allowed city determining ordinances the ne- law, hearing contemplated by is all cessity improvements, making giving were not allowed to be heard. Some cost, a statement of providing estimated they contend, heard, who were *6 published notice, giving proposed and the hearing, too brief a so their views on assessments based on benefits determined material heard. matters were not by Council, appeared trial, in evidence at ator least their material contents were read testimony by the wit- The on trial Too, evidence. the closing ordinance the at the concerning what nesses occurred finding hearing, levying benefits and the February It was varies. on 20 assessments that were recited not exceed to variously that there were estimated the enhanced property value the caused the present at property owners to by conferred, was in evidence. at- hearing. property A Rst owners is names petition and 80 appellees’
tached to However, clear appear on the list. seems We are view at in- present to those did all of us tack on ordinances made trial presentation personally to their tend make court would be under the substantial evi contrary, the ex- with protest. To the dence rule and not de novo. Hous subsequently persons ception we shall Blackbird, ton v. supra. prop Whether all mention, petition of signed a they had erty owners be to heard were to they presented intended to test which an opportunity present to is an views through representa- their chosen Council evidentiary matter the judge con to peti- that such evidence tives. The shows sider in determining whether the action of by received presented to and tions were arbitrary capricious. Council was not in petitions Council. While was, therefore, There submitting error in evidence, at testifying all witnesses jury. issue to the were stated trial to the contents improve- making any of protest against There submitting error in jury to the These not needed. were ments because whether passing the ordinance already streets were stated the witnesses levying assessment was no they had Too, they blacktopped. stated capricious. This a law good were there drainage problems because by decided the court. spoke them. Council drainage testi- resentative who ditches. The witnesses also at expressed would continue petitions pretty fied well announced 2. She home. their views on matter of went very we improvements. significant, got 11:45 Capps Mr. H. O. about think, the record that there word in is no improve- and people were speaking stating specifically petitions stated Adjournment 12 noon. ments. about im- no conferred benefits would be speak. He did not known desire to make his provements proposed assess- nor that attempt speak. He 35 or 40 made no any enhanced value ments would exceed an people present. made were abutting property. Neither resulting meeting. He announcement about later specifically trial is there on persons speak. went He heard two home. attacking nor asserting want benefits through petition. appear He wanted There was amount of assessments. trial, the petitions, and there was on H. about 9. Mrs. A. Williams arrived general conclusion that the opened made meeting 11:30. about She testifying trial signing petition spoke speak known about her desire opposed because 15 or 20 five minutes. The lasted meeting no blacktopped; there was streets meet- minutes. Council announced later curbs drainage problem; there were ing, but didn’t indicate it would need gutters places, didn’t raised She knew of one who afternoon. no improvements. speak a hand who expressing desire do so. allowed to petitions, it having received the presumed, particularly must view Audrey Turner said the started ordinances, gave recitals in the that it until o’clock and lasted noon. but dis- consideration the owners’ views talk. She did not her if wanted to ask she agreed them. with her speak. did not presented Capps presented regard evidence on trial with pretty her well views. lasted, meeting began, long time the how *7 when there a recess whether petition presented Foreman W. L. it noon announced it resume in would spoke He people Street. on Donovan afternoon, very It does is indefinite. .meeting lasted about three minutes. day seem that was held on a meeting re- until Council said 12:10. during the noon Fat Show and about stay Stock not He did convene in afternoon. Council attend function recessed to for it. Uncertainty connection with Show. meeting re- Spaulding, C. when W. probably to the fact that the witnesses is due speak. cessed, to desire made known his times, meeting at the at different arrived session. the afternoon He went back to positions sat at different Council morning ses- parties, when Some other chamber, Fur- all hear well. and could not adjourned, wanted sion said closely ther, listening too some were not they were. remember who heard. He didn’t present- representatives their saw after- be an announced there would to them ing petitions speaking but ask didn’t He was there noon session. before Council. pretty well set to be heard. The meeting began testified the Mrs. Moérs out his views. eight at 11:30 about minutes. lasted couple of met a Page Mr. said She did She would not ask to be heard. post- hearing would be and said the hours spoken if asked. She have she had been he Inconsistently, poned later date. one heard denied heard no who asked meeting. for the afternoon he returned right. Capps rep- one Mr. David there were pavement, whether hand, indicating width of Parsons raised his Mr. evi- gutters. curb sidewalks and heard others speak. He wanted to he signifi- not in the record here not dence is speak but speak. He wanted to Lumber See Foxworth-Galbraith cance. He petition. asked to. He ah, Co., Trust, et Realty S.W.2d anyone helped up. He get never asked dism. (Tex.Civ.App.), told speak. people to let him not adjourned when morning session and remanded. Reversed the meeting would reconvene. L. presented D. Parkinson one of COLEMAN, sitting. J., not
petitions spoke minutes. about three just We unable to understand from Rehearing Motions for On testimony Parkinson’s whether there was an afternoon session or whether his other BELL, Chief Justice. appearances days. were all on other re- original our We adhere to Council, Mrs. Ward said the con- for new remanding this case versing and morning hearing, clusion of the announced mo- We, however, appellants’ grant trial. it would reconvene but in the rear she was that we the extent rehearing tion of the room and didn’t hear the time stated. aas be maintainable held the action to representatives Their spoke. 42(a)(3), under Rule spurious action class Procedure. of Civil We think Texas Rules effect of all this is that present those were not requisite denied the
hearing. special are of view We 9, giving 1105b, statute, Article Section There was evidence from two or desires person who appeal to right three witnesses that much of the did curb complain specifications. conform to need We provides in substance controlling. correct, note that if such is it would pro contest anyone not void the whole assessment. No evidence shall resulting assessment ceedings complains street, gutter sidewalk or instituting a appeal by right to have the improvement as being up specifi such having jurisdiction, suit in court cations. days fifteen within instituted suit This is levied. the time an There is also general of a limitation, but statute is not mere nature that there is now traffic more Any appeal. conferring a statute This, streets and some “hotrodders” it. use advantage of desiring to take individual *8 appears as it record, in the is not sufficient com appeal must statutory method bring within Black- Houston v. complain person Each ply terms. with its bird, supra. It is one item of evidence that himself individually make ing must could be considered on bene- by himself party a suit instituted fits and enhanced value. may plaintiffs, or he other individuals Too, so as separate is some evidence or intervene of variance file a suit per long party-plaintiff so front foot How- assessments. in effect become ever, period only complaint about the is is taken within as his action proper prescribed. method he chooses houses Whichever Council, individually exercising were all about same. or- he is its dinances, pur appeal recognized the statute. When a uniform assessment statute, he must equitable. porting appeal on a front under the foot basis would not be in his in many party There are the suit make factors to considered. himself lot, capacity. shape depth Some of them dividual are: The result in this is that the case named
parties-plaintiff, is, Parkinson, L. D. Williams, and Mrs. A. H. Richard
Bruhn and H. Henderson, individually, R. parties-plaintiff appeal to the
from Council action. express
We opinion no as to the rights
of other should desire de-
fend enforcement
ment against them, but note Fore,
v. cited in opinion. original our
Appellants’ motion for rehearing is
granted to the ap- extent that we hold the
peal provided by may the statute not be
maintained as a class action. Our
reversing the plain- case to the named
tiffs will remain undisturbed.
Appellees’ rehearing motion for also
overruled.
COLEMAN, J., sitting on rehearing. al., Appellants,
C. R. SHADDIX et al., Appellees.
John KENDRICK et
No. 5912. Appeals
Court of Civil Texas.
El Paso.
Sept. 27, 1967.
Rehearing Denied Oct.