City of Waco v. Roddey

• Decision Date: 05 March 1981
• Docket Number: No. 6247,6247
• Citation: 613 S.W.2d 360
• Parties: The CITY OF WACO et al, Appellants, v. Louis R. RODDEY, Individually and as heir to the Estate of H. L. Roddey, Deceased, and Vallie R. Roddey, Deceased, Appellee.
• Court: Texas Court of Appeals

Page 360

613 S.W.2d 360

The CITY OF WACO et al, Appellants, v. Louis R. RODDEY, Individually and as heir to the Estate of H. L. Roddey, Deceased, and Vallie R. Roddey Deceased, Appellee.

No. 6247.

Court of Civil Appeals of Texas, Waco.

March 5, 1981.

Rehearing Denied April 2, 1981.

Earl Bracken, Jr., City Atty., Albert R. Kuehl, First Asst. City Atty., Annette Jones, Asst. City Atty., Waco, for appellants.

Ben Selman, Waco, for appellee.

OPINION

JAMES, Justice.

This was a suit for damages to a house resulting from an order of the Building Standards Commission of the City of Waco that said house and other structures located on Plaintiff-Appellee's property be demolished. Trial was held before the court without a jury and judgment was rendered for Plaintiff-Appellee Louis R. Roddey, Individually and as Heir to the Estate of H. L. Roddey, Deceased, and Vallie R. Roddey, Deceased, in the sum of $15,000.00. Defendant-Appellants, The City of Waco, The City of Waco Building Standards Commission, and David Smith, City Manager of the City of Waco, a Municipal Corporation, appealed. For purposes of this appeal Defendant-Appellants will be referred to as "the City".

During the summer of 1976 an inspector for the City of Waco noticed brush, debris and tall grass surrounding the buildings located at 509 North 16th Street in Waco, Texas. From that date until April 1978, inspections of the property were made. The house had been vacant since September, 1976, but the tax records of the state, county, school district and city all showed the property to be owned by H. L. Roddey, residing at 509 North 16th Street, Waco, Texas. Since no one was living on the property, the City claims that an attempt was made to find the address of an owner so that he could be notified that the structures on the property were considered to be substandard. It is also claimed that in order to do this a hold was placed on the water service by the city inspector, and neighbors were contacted. Mr. Charles Mitsakos, the Dangerous Structure Coordinator of the City of Waco, testified that he checked the City of Waco telephone directory, the Waco "Kriss-Kross" and the City Directory without any success in determining who the owner might be. A title letter was requested and received showing that the McLennan County Deed Records indicated H. L. Roddey and wife Vallie Roddey as record owners. The letter further showed that H. L. Roddey died intestate and Vallie Roddey was deceased. The names of the heirs of H. L. Roddey and Vallie Roddey were shown on the title letter as being Louis R. Roddey, Lawrence D. Roddey, Barbara Roddey Hogan and husband Eddie W. Hogan. The record before us shows that the other Roddey heirs have conveyed their interests in the subject property to Louis R. Roddey, Plaintiff-Appellee herein. No address for any of the heirs appeared on the title letter; however, a probate number of the Estate of Vallie Roddey, Deceased, was included on the title letter, which probate proceedings showed the address of Plaintiff-Appellee Louis R. Roddey. A notice was published in a local newspaper March 28th, 31st and April 3, 1978, notifying the heirs to contact the City of Waco's minimum housing office no later than May 3, 1978. The notice was for the purpose of advising them that a determination had been made that the structures on the property did not meet the City of Waco Minimum Housing Code. On April 18th, 21st and 25th, 1978, a notice was published in the same newspaper advising the Roddey heirs that the Building Standards Commission for the City of Waco would meet on May 3, 1978, to consider what disposition should be made of the structures located at 509 North 16th Street, Waco, Texas. It is undisputed that none of the Roddey heirs ever had any actual knowledge of the fact that this meeting would be held until after the City had partially demolished the property.

On May, 3, 1978, the Building Standards Commission for the City of Waco met, and Mr. Mitsakos presented the building at 509 North 16th Street. Pursuant to the meeting, on May 30, 1978, a demolition permit was issued, and demolition began on the main structure on the property on June 22, 1978. A portion of the roof was removed, and numerous windows and doors and other items were removed.

Plaintiff was notified by certified mail on August 19, 1978, of a second meeting of the Building Standards Commission to be held on September 6, 1978. On September 1, however, instead of appearing before the Commission, Roddey filed suit in the District Court. Trial was held and judgment rendered for Plaintiff, for $15,000.00, from which judgment the City appeals.

The trial court filed the following findings of fact which may be summarized as follows:

1) That the City had in its possession or subject to its possession and should have known the whereabouts of the Executor of the Estate of Vallie R. Roddey, Deceased, and of Louis R. Roddey, as an Heir to the Estate of H. L. Roddey, Deceased.

2) That neither Louis R. Roddey, nor any other person with interest in the property located at 509 North 16th Street, Waco, Texas, was given proper notice by the City of proposed actions or proceedings with regard to said property.

3) That the actions, proceedings, and any attempted notice by the City to the Plaintiff, Louis R. Roddey, Individually and as Heir to the Estate of H. L. Roddey, Deceased, and Vallie R. Roddey, Deceased, did not constitute due process.

4) That damage in the amount of $15,000.00 was done to Plaintiff's property at 509 North 16th Street, Waco, Texas, by the trespass of the City.

5) That the property located at 509 North 16th Street, Waco, Texas, was not in demolition condition at the time that the City attempted and completed substantial demolition of that property.

Appellant City is before this court on four Points of Error, to wit:

1) The Trial Court erred in accepting jurisdiction of Plaintiff's case for the reason that primary jurisdiction was in the Building Standards Commission for the City of Waco.

2) The Trial Court erred in finding that the actions, proceedings and any attempted notice by the City to the Plaintiff did not constitute due process for the stated reason that the evidence shows that proper notice was given to Plaintiff in accordance with the law and the ordinances of the City of Waco 3) The Trial Court erred in not finding that the structures located on the Roddey property constituted a nuisance in fact for the stated reason that competent and uncontroverted evidence showed that such structures for a period of time in excess of one year were substandard, vacant, unsecured and used as shelter by transients.

4) The Trial Court erred in granting Plaintiff damages of $15,000.00 for the reason that there is insufficient evidence to support such damages.

We overrule all of the Appellant City's points and contentions and affirm the trial court's judgment.

We revert to the Appellant City's first point, to wit, that the trial court erred in accepting jurisdiction of Plaintiff-Appellee Roddey's case for the stated reason that primary jurisdiction was in the Building Standards Commission for the City of Waco. We are of the opinion that the doctrine of primary jurisdiction has no application to the case at bar and therefore overrule this point of error.

In Gregg v. Delhi-Taylor Oil Corp. (1961), 162 Tex. 26, 344 S.W.2d 411, our Supreme Court delineates the doctrine of primary jurisdiction in this language:

"That theory is that when the Legislature has delegated the power to an administrative body to regulate a particular industry or business, the courts may not or will not interfere until the board or bureau has had an opportunity to pass upon the matter and has remedied, or attempted to remedy, the situation. Two of the main arguments supporting this theory are: (1) That the commission, board, or bureau is staffed with experts trained in the handling of the complex problems presented, and (2) great benefit is to be derived from a uniform interpretation of laws, rules and regulations by an administrative body whereas different results might be reached under similar fact situations by various courts or juries. It is their (Gregg's) position that 'primary jurisdiction' is a principle which determines whether the court or the administrative body should make the initial decision. And this is a case, they say, in which the initial decision should be (must be) made first by the Commission." (emphasis supplied). Also see Kavanaugh v. Underwriters Life Ins. Co. (Tex.Civ.App. Waco CA 1950) 231 S.W.2d 753, writ refused, wherein the court said at page 756: "Questions of primary jurisdiction arise only when the statutory arrangements are such that administrative and judicial jurisdiction are concurrent for the initial decisions of some questions." (emphasis supplied).

In the case at bar, the trial court did not take jurisdiction in order to make the initial decision. The City ordinance established the Building Standards Commission as the Administrative body to hear appeals from property owners. This Commission met on May 3, 1978, and after hearing the testimony of Mr. Charles Mitsakos, the City's Dangerous Structures Coordinator, determined that the Roddey property was in violation of the City's Minimum Housing Code and ordered said property to be demolished. The City's ordinances do not provide for any further administrative procedures or remedies to be pursued after the Building Standards Commission has acted. At this point Plaintiff-Appellee Roddey had no other recourse but to bring his suit in the District Court. In other words, the Building Standards Commission had already exercised "primary jurisdiction" in the matter, and had concluded the action that it saw fit to make, pursuant to which action the City had already partially demolished the property in question before Roddey filed his suit for damages in the District Court. We overrule Appellants' first...