Denbina v. City of Hurst, 784
| Decision Date | 21 November 1974 |
| Docket Number | No. 784,784 |
| Citation | 516 S.W.2d 460 |
| Parties | W. L. DENBINA et ux., Appellants, v. CITY OF HURST, Texas, Appellee. |
| Court | Texas Court of Appeals |
Ernest May, Fort Worth, for appellants.
George A. Staples, Jr., City Atty., Hurst; for appellee.
The principal question involved in this case is whether the cause of action made the basis of the City's suit amounted to a compulsory counterclaim under Rule 97(a), Texas Rules of Civil Procedure, and is therefore barred by a declaratory judgment rendered in favor of the defendants, W. L. Denbina and wife, in the prior suit against the City. The present suit was instituted by appellee, City of Hurst, against appellants, W. L. Denbina and wife, on September 12, 1972, seeking a personal judgment against the Denbinas for the sum of $1,858.16 upon a paving assessment levied against them by the City in paving a street abutting their property. Appellants answered with a general denial and a plea in bar alleging that prior to the time the present suit was filed, they had brought suit against the City seeking to declare the paving assessment lien void on the ground that the property in question was their homestead and that the previous suit resulted in a judgment declaring the paving lien void. Therefore they alleged that the City's claim against them in the present suit for personal judgment on the assessment amounted to a compulsory counterclaim in the previous suit and since the City took a non-suit on its claim in the prior suit prior judgment stands as a bar because of the provisions of Rule 97(a), supra. On December 12, 1973, the trial court, sitting without a jury, rendered a personal judgment against the Denbinas for $1,152.52 representing the amount of the final installment due on January 1, 1973, but denied the City a recovery for the remaining $716.63 alleged to be due apparently on the ground that the latter amount constituted a compulsory counterclaim and that the City had waived a recovery thereof by taking a non-suit on its counterclaim in the prior declaratory judgment suit. The City makes no complaint of the judgment. Appellants, W. L. Denbina and wife, perfected this appeal.
We affirm.
The facts are undisputed. On December 10, 1968, the City of Hurst passed a resolution levying a special assessment against appellants for the cost of paving a street abutting their property. The certificate of special assessment provided for a lien to secure payment thereof in the amount of $5,757.59, payable in five equal installments of $1,151.52 each, with the first becoming due on January 1, 1969, and the final installment becoming due on January 1, 1973. The certificate of assessment contained in acceleration clause as follows:
On December 21, 1971, W. L. Denbina et ux., filed a declaratory judgment suit against the City of Hurst in the District Court of Tarrant County in Cause No. 153--10896--71 seeking to have the assessment declared void on the ground that the property assessed constituted their homestead. The City answered the suit with a general denial and with a counterclaim alleging that the Denbinas were delinquent in their payments in the amount of $716.63 and because of the delinquency the City had elected to exercise its option to accelerate maturity upon the final installment of $1,151.52. At the time the City filed its counterclaim in that suit on January 7, 1972, the Denbinas were delinquent in their payments in the amount of $716.63. The final installment in the amount of $1,151.52 was not due, but the City, by electing to accelerate maturity, sought a total recovery of $1,858.16. Prior to the time the court pronounced judgment in that case, the City took a non-suit on its counterclaim. On June 28, 1972, the court entered judgment declaring the lien created by the special assessment on the Denbinas' homestead to be void and unenforceable and recited that the City had taken a non-suit on its counterclaim. While the court declared the lien to be void, the judgment did not purport to absolve appellants of personal liability upon the assessment.
After the judgment in the prior suit became final, the City instituted the present suit. The City's petition in the suit at bar is identical with its petition on its counterclaim in the prior suit, except the City did not seek to...
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