City of Houston v. Biggers
| Decision Date | 11 June 1964 |
| Docket Number | No. 14298,14298 |
| Parties | CITY OF HOUSTON, Appellant, v. Ross BIGGERS et al., Appellees. |
| Court | Texas Court of Appeals |
R. H. Burks, City Atty., Joseph G. Rollins, Clifton E. Speir, Senior Asst. City Attys., Houston, for appellant.
Bracewell, Reynolds & Patterson, William H. White, Houston, for appellees.
This is an appeal from a judgment in a condemnation case awarding appellant title to 128,520 square feet of land in the City of Houston and giving appellees recovery against appellant for $1,157,615.00 which was the value of the land as determined by a jury.
Appellant complains that the trial court erred in not granting its motion to dismiss the case which motion was made after verdict but prior to the rendition of judgment. The position of appellees is that because of the acts on the part of appellant hereinafter noticed there had been 'a taking' of the property before the motion to dismiss was made and the point of no return had therefore been reached by appellant.
On April 3, 1962, the Judge of the court, in response to a petition filed by appellant, appointed commissioners to determine the value of appellees' property. The property was to be acquired by appellant as a part of the 'Civic Center.' After hearing, the commissioners, on June 22, 1962, made their award and it was filed with the judge July 6, 1962. On the same day appellees filed their objections to the award. Trial of the case in court commenced March 25, 1963. The jury returned its verdict March 29, 1963. On April 3, 1963, the City Council passed a motion authorizing the City Attorney to dismiss the case and directing him to prepare an ordinance eliminating appellees' property from the 'Civic Center.' On April 4 the motion to dismiss the case was filed. It recited the action of the Council in determining not to purchase the property at the value assessed and to exclude the property from the Civic Center and authorizing dismissal of the case.
On April 19 appellees filed an answer to the motion to dismiss and made a motion for judgment on the verdict. The basis of the opposition was that because of the appellant's acts with regard to the property, which we will specifically notice when we review the evidence given on the motion, appellees would be prejudiced by dismissal.
On April 19 appellant filed an amended motion to dismiss which attached a copy of an ordinance passed April 17 purporting to exclude the property from the Civic Center.
A hearing was commenced on the motion to dismiss on April 19, at which evidence was introduced, but it was not completed and was recessed until April 26. However, the court rendered judgment on the verdict April 19. At that time, as evidenced by the judgment signed by the court, appellant excepted to the judgment, and it was also recited therein that the motion to dismiss had been filed.
On April 26 the hearing on the motion to dismiss was resumed and at that time appellant filed what it denominated 'Motion to Set Aside Judgment and Enter Judgment of Dismissal.' It added an ordinance of April 24 passed by the City, Council which definitely excluded appellees' land from the Civic Center. After further evidence was introduced the motion to dismiss was overruled.
The evidence on the motion to dismiss reflected without dispute that appellant had never taken physical possession of the property or any part thereof and that no deposit of the amount of the award made by the commissioners had ever been made so as to give appellant the right to possession. It showed that September 23, 1958, the City Council passed an ordinance determining that 'Public necessity and convenience required the designation and protection of the Civic Center.' The Civic Center was then designated as covering a defined area including appellees' land. It further provided that within the area no new structures would be permitted to be built and no repairs to existing structures would be permitted where the cost of the repairs in one calendar year exceeded 25% of the value of the structure repaired. The Director of Public Works and Engineering was directed to refuse any permit to build new structures or to make repairs contrary to the ordinance.
Mr. Ross Biggers, one of the appellees, testified that since the passage of the ordinance appellees had made repairs to the existing structure by putting on a new roof. He had made no application for any permit for a new structure. There is no evidence that appellees contemplated any new structure or additions to the existing structure. Appellee operated a printing business on the property. The operations, including the use of the building and parking facilities utilized an estimated 5% of the property. Appellees at no time sought amendment of the ordinance to exclude their property. It appears that prior to 1961 the City assessed the property for taxes at a relatively small amount, and beginning in 1961 raised the valuation from $6,950.00 to $217,000.00. Mr. Biggers made it clear that all values for tax purposes, both before and including the increase, were those fixed by the City and not appellees. The owners did not render the property nor was there any appeal to the Board of Equalization. In 1961, when there was this great increase Mr. Biggers appeared before the City Council to protest the increase when he could not utilize the property further because of the ordinance and increase his revenue. He did not, he testified, appear to protest that the amount of the increase exceeded what was a fair value for tax purposes. At that time someone on the Council told him not to worry, the City was going to take the property.
The evidence showed that at times after the passage of the ordinance of September, 1958, appellees had had various people who were interested in negotiating for purchase of the property but ended negotiations when it was learned the property was under threat of condemnation. It should be stated that appellant had the ordinance creating the Civic Center filed in the Deed Records of Harris County. The ordinance in fact directed the City Secretary to file a certified copy with the County Clerk. One advetiser wanted to lease space from appellees for a sign at $500.00 per month but lost interest when he learned of the threat of condemnation. It does not appear just when this interest was shown but the letters introduced in evidence are dated in 1961 and 1962.
As above stated, the City Council, by motion, on April 3, 1963, directed dismissal of the suit and the preparation of an ordinance excluding this property. An ordinance, which is numbered 63-544, was passed April 17, 1963. In the ordinance it was found by the Council that the value as found by the jury exceeded the benefit that would result to the public from acquisition of the property. Section 2 of the ordinance recites that the Council finds and determines that the ordinance of September 23, 1958 (Ordinance No. 58-1033) should be amended so as to exclude this property. It directed the City Secretary to file a certified copy for record with the County Clerk. It was purportedly passed as an emergency measure. Appellees contend this ordinance did not take effect immediately because not shown to have been supported by the proper number of Councilmen. Also, they contend, it merely declares the land should be excluded but does not specifically enact that it is thereby excluded. On April 24 the Council passed Ordinance No. 63-560, which definitely excluded appellees' land.
In testifying as to value in the condemnation hearing before the jury, Mr. Ross Biggers, one of the appellees, testified the property had a market value of $1,285,200.00, or $10.00 per square foot. One of appellees' experts testified the same and another testified to $1,250,000.00. Mr. Jungman, one of appellees' experts, testified for several years there had been a rising market and gave as his opinion that the property in the area was increasing at about 16% per annum. Mr. Biggers testified he would rather have the property than get $10.00 per square foot for it.
Appellees' position is that because of the facts detailed the court was correct in overruling the motion to dismiss. The foundation for such is their contention as follows:
1. The passage of Ordinance No. 58-1033 and its continuance in force until the ordinance of April 24, 1963 effected a 'taking' of the property.
2. They would be prejudiced because they had been unable to negotiate for the sale or additional use of the property that might entail additional structures.
3. They had been put to expense in connection with the proceedings.
4. Appellant could, after dismissing the suit, refile and possibly get a lower award. In this connection they seem to assert this is the real purpose in seeking to dismiss. In other words, they challenge the good faith of appellant.
We are of the view that the court was in error in not sustaining the appellant's motion to dismiss.
The rule is well settled in Texas that a condemnor may elect to dismiss a condemnation proceeding at any time prior to...
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