City of Houston v. Parkinson

• Decision Date: 27 April 1967
• Docket Number: No. 14861,14861
• Citation: 419 S.W.2d 900
• Court: Texas Court of Appeals
• Parties: CITY OF HOUSTON et al., Appellants, v. L. D. PARKINSON et al., Appellees.

Page 900

419 S.W.2d 900

CITY OF HOUSTON et al., Appellants, v. L. D. PARKINSON et al., Appellees.

No. 14861.

Court of Civil Appeals of Texas,

Houston.

April 27, 1967.

Rehearing Denied Oct. 12, 1967.

Second Motion for Rehearing Denied Nov. 2, 1967.

Wm. A. Olson, City Atty., and Homer T. Bouldin, Trial Supervisor, houston.

Edgar W. Monteith, Charles E. Williams and Peter S. Solito, Houston, and William P. Dobbins, San Antonio, amicus curiae in support of motion for rehearing.

Danny R. Edwards and Joel B. McCarty, Jr., Houston, for appellee.

BELL, Chief Justice.

This is an appeal from a judgment enjoining the levying of any assessment against the property owners on Alba, Fisher, Donovan and Brinkman Streets in Houston for the paving of said streets, and cancelling any assessments that had been made, and holding void the ordinance making the assessments. The judgment was based on jury findings that the only notice given of the hearing on the proposed assessments was by publication in the Houston Press; that all those owning property on said streets were not given the right to be heard at the hearing date of February 20, 1963 on any matter pertaining to the proposed improvements and assessments; that the curbs and gutters were not constructed in accordance with the specifications set forth in the pertinent ordinance; and, that the action of the City Council in passing the ordinance levying the assessments was arbitrary and capricious.

The action was brought as a class action under Rule 42(a) by five named plaintiffs, the named parties suing individually and as representatives of the other property owners on their respective streets. The named plaintiffs were: L. D. Parkinson of Fisher Street, Mr. and Mrs. A. H. Williams of Donovan Street; Richard Bruhn of Brinkman Street; and H. R. Henderson of Alba Street. Judgment was in their favor individually and as representatives of all the property owners of their particular class similarly situated.

The defendants were the City of Houston and its then Mayor.

Appellant urges the action could not have been maintained as a class action. It was purportedly brought under Rule 42(a) but under which subdivision is not stated. We are of the view it could be maintained under Subdivision (3) as a spurious class action. The character of the right sought to be enforced for the class was several; there was a common question of law and fact affecting the several rights and common relief was sought. 1 McDonald, Texas Civil Practice, Sec. 3.34.1, pages 347--351. We also find adequate representation for the respective classes.

On December 26, 1962, the City Council passed an ordinance, No. 62--1859, determining the necessity for and ordering the pavement of certain streets, including the above named ones. The ordinance was ordered published, as required by Article 1105b, Vernon's Ann.Civ.St.Tex. The ordinance gave notice that a hearing would be held on February 20, 1963, at 11:00 o'clock a.m. in the Council Chambers, following which hearing assessments would be levied against the abutting property owners in accordance with the benefits in the enhanced value of each tract or property. This ordinance was properly published by publication in the Houston Press. No attack is made on the form of publication. The complaint is that this was the only notice furnished the owners of the property and such is not constitutionally sufficient to authorize the Council to levy an assessment.

We should notice that the record shows there were listed in the ordinance three groups of streets. Only Groups I and II are here involved.

Group I provided for construction of curbs and gutters and 7-inch cement stabilized shell base and hotmix asphaltic concrete surfacing. Under Group I are listed Fisher, Alba and Brinkman Streets. Alba is shown to be 37 feet in width. Brinkman is shown to be 24 feet in width. Fisher from the EPL of Golf Drive to 365 feet east of the EPL of Golf is shown to be 37 feet in width, and from that termination point to a point 442 feet east of the EPL of Brinkman, Fisher is shown to be 24 feet in width.

Group II includes a designated portion of Donovan Street and in addition to providing for the same improvements as called for in Group I calls for construction of sidewalks.

Further, there appears in the published ordinance the estimate of the rate of assessment to be made. For Group I the estimate for surfacing a width of 24 feet was at the rate of $5.58 per front foot, and for a 37 foot width it was $7.39. This, as we understand it, includes the estimated cost of the paving and curb and gutter. The estimate for Donovan Street that constituted Group II was $9.59 per front foot. This included sidewalks. Donovan Street was shown to be 37 feet in width.

On April 17, 1963, Council passed Ordinance No. 63--529, which formally closed the hearing, determined the benefits and levied the assessments.

In paragraph (f) it was recited that at said benefit hearing 'all parties desiring to be heard * * * were heard and all matters as to the accuracy, sufficiency, regularity and validity of any and all of said proceedings were heard and considered; and the said City Council heard evidence as to special benefits to each parcel of abutting property and the respective owners thereof in enhanced value of said property by means of such improvements of the respective portion of the particular street or street on which the same abuts, and did give a full and fair hearing to all parties appearing and desiring to be heard; and did at such hearing determine the benefits as aforesaid.'

Paragraph (g) of the ordinance recited in substance that assessment on a uniform amount per front foot would not be equitable because of difference in the width of the streets, and because there are curbs and gutters to be constructed at some places and not at others. Further it is recited that adjustments in the assessments had been made because of the differences in the improvement is and that no assessment was more than the amount of the benefits in the enhanced value resulting to each tract of land and the owner thereof from the improvements.

Section 2 of the ordinance again recites the hearing of evidence, testimony and protest for and against the improvements and when there were no further protests offered or desired to be offered, the hearing was closed. The objections and protests were overruled and denied. Regularity of all proceedings is recited and direction is made for the issuance of certificates reciting such regularity and a lien securing the amount assessed is fixed.

The real complaints of appellees as evidenced by their petition and evidence offered on trial of the case are that the only notice given was by publication in the Houston Press; that all property owners were not given an opportunity to be heard at the hearing pertaining to the proposed improvements and assessments; that the curbs and gutters were not constructed in accordance with plans and specifications and that the action of the City Council in passing the ordinance levying the assessment was arbitrary and capricious.

The position of appellant is that the trial court was in error in submitting any of the four issues to the jury, the contention being that trial should not be de novo but should be under the substantial evidence rule. Also, it is contended that whether the action of the City Council was arbitrary, it allegedly, not being supported by substantial evidence, is a question of law to be decided by the court.

The first special issue, inquiring if the newspaper advertisement was the only notice of hearing given by the City, should not have been submitted because the evidence is undisputed that this was the only notice given. Only ultimate issues, the existence of which are in dispute under the evidence, are to be submitted. This is no reversible error because we find it established as a matter of law.

Appellees seem to take the position that constructive notice alone does not satisfy due process of law and therefore all proceedings are without effect. They cite cases that are discussed by the Texas Supreme Court in City of Houston v. Fore, Tex., 412 S.W.2d 35. We will not discuss or analyze them because that Court has done so. We understand the rule to be that constructive notice alone does not satisfy due process where it is practicable to give some form of personal notice. The witnesses testifying had lived at their respective addresses many years and as to them it may be assumed it was practicable to get personal notice to them. There is no evidence, however, along this line as to the other owners. However, we also understand the rule to be that though only constructive notice was given in conformity to the statute, due process is satisfied if the parties complaining had actual notice. City of Houston v. Fore, supra; City of Corsicana v. Mills, 235 S.W. 220 (Tex.Civ.App.), ref.; McAlexander v. Smith Bros., 62 S.W.2d 530 (Tex.Civ.App.), writ dism.; Beatty v. Panhandle Construction Co., 275 S.W. 716 (Tex.Civ.App.), writ ref.

Under the record here it appears that all named plaintiffs, except Mr. Bruhn, had actual notice and appeared at the hearing on February 20. In addition to the named plaintiffs, except Mr. Bruhn, Audrey Turner, Mrs. Burnet Moers, H. O. Capps, Mrs. L. P. Ward, C. W. Spaulding, Virgil Parsons, all of whom lived on Fisher Street, testified in the trial court that they had actual notice of the hearing and attended it. Mrs. Garcia and Robert J. Page, who lived on Alba Street, had actual notice. Mr. Page attended the hearing, but Mrs. Garcia did not due to the illness of her husband. Mrs. A. H. Williams and W. L. Foreman, Sr., who lived on Donovan Street, had actual notice. In each instance we have stated the parties had actual notice we mean they acquired it by means other than personal notice furnished by the City. Some learned of it from neighbors; some by seeing a survey being made; and one...