Alamo Carriage Service, Inc. v. City of San Antonio

• Decision Date: 12 April 1989
• Docket Number: No. 04-87-00650-CV,04-87-00650-CV
• Citation: 768 S.W.2d 937
• Parties: ALAMO CARRIAGE SERVICE, INC. Edith Molnar and Lazslo Beres, Appellants, v. CITY OF SAN ANTONIO, Appellee.
• Court: Texas Court of Appeals

Page 937

768 S.W.2d 937

ALAMO CARRIAGE SERVICE, INC. Edith Molnar and Lazslo Beres, Appellants, v. CITY OF SAN ANTONIO, Appellee.

No. 04-87-00650-CV.

Court of Appeals of Texas San Antonio.

April 12, 1989.

Rehearing Denied May 5, 1989.

Don Killingsworth, Law Offices of Ernest V. Rountree, Tyler, for appellants.

Paula Dlugosz, Steven W. Arronge Asst. City Attys., San Antonio, for appellee.

Before BUTTS, BIERY and CARR, JJ.

OPINION

CARR, Justice.

This is a suit for damages, injunction and a declaration judgment brought by Alamo Carriage Service, Inc., Edith Molnar and Laslo Beres (appellants) against the City of San Antonio (City) as a result of appellants' loss of certain permits to operate horse carriages in the City of San Antonio. Initially, appellants had a permit to operate horse carriages as a result of a 1978 city ordinance. In a 1984 suit appellants alleged that the city had revoked five of the permits without according appellants their procedural due process and in a second suit filed in 1985, appellants contended that the city had revoked the remaining five permits again alleging depriviation of procedural due process. The two causes were consolidated for trial before a jury. From a verdict and judgment adverse to appellants, this appeal was perfected.

The record reflects that in 1978 the City Council of San Antonio passed an ordinance authorizing issuance of a permit to Happy Cooker, Inc. to operate horse-drawn carriages for hire along designated routes on downtown streets. The permit was for a period of three years beginning May 1, 1979, and authorized the operation of not less than one nor more than ten horse-drawn carriages. The permit expressly provided that it was not transferable or assignable in any manner without the consent of the city council by ordinance and that the stable facilities be open for inspection at all reasonable times. The permits did not contain a renewal provision.

Edith Molnar was a stockholder in Happy Cooker, Inc. In March of 1980, Happy Cooker, Inc. was dissolved and stocks were transferred to Mrs. Molnar, individually. In March of 1982, Laszlo Beres, Mrs. Molnar's son, acquired the carriage business. In 1985, Alamo Carriage Service, Inc. was incorporated.

The business of horse-drawn carriages was novel to modern San Antonio when the city council approved the initial 1979 permit. Experience during the three years that appellants' 1979 permit was in effect indicated a need to address certain concerns prior to the issuance of new permits such as traffic safety and the treatment of the animals. In 1982, the City began to formulate a new and more comprehensive carriage ordinance and the city council referred this matter to a transportation committee, which was composed of council members.

The evidence further reflects that the transportation committee deliberated these concerns. At hearings before the committee, citizens, the appellants and other applicants participated. The matter was later discussed extensively by the San Antonio City Council. The appellants, other permit applicants, and citizens addressed the council before it passed the 1983 ordinance which authorized the issuance of permits to three carriage companies, including the appellants. Each of the permittees was authorized to operate up to five (5) carriages.

During the interval, between the time the 1979 permit expired and the passage of the new 1983 ordinance, appellants were allowed to operate under the old 1979 permit.

The permits issued under the 1983 ordinance contained most of the provisions of the original 1979 permit. Rather than a "street rental" charge of ten (10) percent of the gross monthly receipts, each permittee was required to pay an annual fee of $500 per carriage. In addition to five (5) regular carriages, permittees were allowed up to five (5) supplemental carriages to be used for charter service after 6 P.M. upon prior approval from the supervisor of public utilities department of the city. The new permits specified minimum requirements relating to the health of the horses; provided for the inspection of the carriages and equipment; contained detailed lighting requirements; the hours of operation and routes were more restrictive than the original permit. The 1983 permit specifically provided that additional restrictions could be imposed by city council and that temporary restrictions could be imposed by the director of public works and the police department during heavy traffic congestion resulting from construction or holiday activities. As in the original 1979 permit, the 1983 permit contained no provision for renewal.

The record reflects that in late 1984, the city staff began working on a third horse-drawn carriage ordinance. The traffic division of the police department and the departments of public works and health were consulted. Private individuals, businessmen and organizations were also active in the development of the new ordinance. The city staff reviewed all permittees with respect to their history regarding conformance with the 1983 permit regulations and found that appellants had the worst performance record of the three carriage companies. There was testimony that: Alamo's horses were not properly cared for, were overworked, were worked though lame and were worked with saddle sores. The behavior of a horse which is worked in an exhausted or lame condition or with open sores is unpredictable and such horses are apt to collapse or bolt; the appellant's horses did both in downtown traffic.

On March 7, 1985, city council passed an ordinance extending the 1983 permits for a short period pending the completion of city council review. Subsequently, city staff recommended that permits be issued to three carriage companies to the exclusion of the appellants. An ordinance was passed on June 6, 1985, which approved the adoption of new regulations for horse-drawn carriages and the appellants as applicants were present and addressed council at the June 6th meeting along with representatives of citizen groups concerned with the humane treatment of animals. Council members questioned the applicants and other individuals in addition to city staff and were available for questions regarding the permits and their decision making process. Council did not award permits at its June 6th meeting.

The evidence reflects that on June 20, 1985, council passed another ordinance extending the 1983 permits until June 27th and on June 27, 1985, after another lengthy meeting with representatives of appellants and their attorney present and after addressing city council, council passed its June 27th ordinance approving the issuance of permits under the new regulations to three carriage companies, but not to the appellants. (We find that all extensions of appellants' 1983 permits expired on that date.)

In their different points of error appellants have combined assignments of error based on the legal and factual sufficiency of the evidence. Since appellants had the burden of proof, we believe the proper legal insufficiency challenge is "as a matter of law" and the proper factual insufficiency challenge is "against the greater weight and preponderance." See generally O'Conner, Appealing Jury Findings, 12 HOUS.L.REV. 65 (1974).

In reviewing a no evidence point, the court must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Larson v. Cook Consultants, 690 S.W.2d 567 (Tex.1985). Because plaintiffs must claim to have met their burden, the court must also find that the contrary proposition is established as matter of law. Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982). If there is any evidence of probative value supporting the adverse finding, then the point of error must fail. Id. at 697; Jordan v. Ortho Pharmaceuticals, Inc., 696 S.W.2d 228 (Tex.App.--San Antonio 1985, writ. ref'd n.r.e.) (adverse finding against party with the burden is error only if the fact is established as a matter of law).

When a factual insufficiency point is raised, the court is required to examine all the evidence and may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). But the trier of the fact is the sole judge of the facts proved, the credibility of the witnesses and the weight to be given to their testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). The jury may have believed all or part of a witness's testimony. Id. The court may not substitute its judgment for a jury finding even if a different conclusion could be reached after reviewing all the evidence. Clancy v. Zale Corporation, 705 S.W.2d 820 (Tex.App.--Dallas 1986, writ ref'd n.r.e.).

Appellants points of error one, six and seven challenge the jury's findings as to Special Issue No. 7. Pursuant to the provisions of the Texas Rules of Appellate Procedure, appellants have combined their claims as to the legal and factual sufficiency of the evidence to support the jury's findings as to Special Issue No. 7 in one point of error. See TEX.R.APP.P. 74(d) (Vernon 1988). Furthermore, since the arguments as to points of error one, six, and seven are similar, if not identical, we have combined these arguments for the sake of brevity.

Special Issue No. 7 as submitted to the jury required it to answer whether or not appellants had been provided with notice, hearing, the confrontation and cross-examination of adverse witnesses, the presentation of witnesses and evidence in appellants' behalf, and findings of fact made by an independent committee. The issue was submitted to the jury with appropriate spaces for their answers as to 1983 and 1985, in which spaces the jury answered "No" indicating that appellants had been...