Devorsky v. La Vega Independent School Dist.

• Decision Date: 24 June 1982
• Docket Number: No. 10-82-058-CV,10-82-058-CV
• Citation: 635 S.W.2d 904
• Parties: 5 Ed. Law Rep. 1074 Russell DEVORSKY, Appellant, v. LA VEGA INDEPENDENT SCHOOL DISTRICT, et al., Appellees.
• Court: Texas Court of Appeals

Page 904

635 S.W.2d 904

5 Ed. Law Rep. 1074

Russell DEVORSKY, Appellant, v. LA VEGA INDEPENDENT SCHOOL DISTRICT, et al., Appellees.

No. 10-82-058-CV.

Court of Appeals of Texas, Waco.

June 24, 1982.

W. V. Dunnam, Jr., Dunnam, Dunnam, Horner & Meyer, Waco, for appellant.

Tommy P. Herring, McClintock, Herring & Youts, Waco, for appellees.

HALL, Justice.

On November 17, 1981, the Board of Trustees of La Vega Independent School District by resolution ordered an election to be held on December 15, 1981, on this proposition: "Shall (the Board) be authorized and empowered to issue the bonds of said District to the amount of $5,000,000.00 for school building purposes, to wit, the construction and equipment of school buildings in the District and the purchase of the necessary sites therefor, and shall there be pledged and levied, assessed and collected annually ad valorem taxes on all taxable property in the district sufficient, without limit as to rate or amount, to pay the principal of and interest on said bonds as the same become due, said bonds to be issued in one or more series or issues, to mature serially or otherwise not more than FORTY (40) years from their date, and to bear interest at such rate or rates (not to exceed the maximum rate permitted by law at the time of issuance of the bonds) as in its discretion the Board of Trustees shall determine?" The election was held on the appointed date, and the proposition carried.

On March 25, 1982, appellant Russell Devorsky filed this suit against appellees the School District and its Board of Trustees to enjoin appellees from issuing or selling any of the bonds authorized by the bond election and from assessing, levying, or collecting any taxes for the purpose of paying any principal or interest on the bonds. After pleading the resolution and order calling the election, including the purpose of the bond issue set forth in the order, appellant alleged the following:

"Said election was held in pursuance of said order on said 15th day of December, 1981, and by the vote of 649 for to 629 against, the proposition to authorize and empower said Board to issue said bonds and levy, assess, and collect said taxes carried. After said Board's adoption of said resolution and order on November 17, 1981, and prior to said election said Independent School District, acting through its duly authorized agents within the scope of their authority as such, expressly represented to all qualified voters in said School District that the site to be purchased upon which said school buildings would be constructed would be on Loop 340 east of the American Bank, that the school buildings to be constructed would be highly visible to the public approaching Bellmead from the north and northwest, and that by reason of said high visibility to highway traffic on Interstate Highway 35 and Highway Loop 340 said school would be an asset to the City of Bellmead and its citizens and that it would be an asset to the areas surrounding said location which would include a great portion of the residential and business properties in the City of Bellmead. Each of said representations was material to each of said voters in said School District and in particular those living within the City of Bellmead, was a material cause and inducement of and for more than twenty qualified voters in said election voting for said proposal to empower and authorize said bond issue and taxes who would have voted against same if said representations or either of same had not been made. Since said election, in March of 1982 said School District abandoned and decided not to construct said school at or near said site which had been represented and brought about a favorable vote on said bond issue and publicly announced to all of the voters in March of 1982 that it would use said bond issue and the monies to be derived from the issuance and sale of said bonds toward the purchase of fifty acres of land from the Guy Combs estate located on the north side of Interstate Highway 84 East at the intersection of Highway 84 East and County Road 212, which location is far removed from the northern part of the City of Bellmead, the site represented to the voters prior to said election, and any school constructed thereon will not be highly visible from those approaching Bellmead from the north or northwest and said location will be continuously flown over by planes practicing landing and taking off at an airfield in that said location is within the approaches to the landing field of a busily used airfield and by reason of said location said school will not constitute any asset to the City of Bellmead or the areas surrounding said Loop 340 near said American Bank. Said Board of Trustees and said School District at all times knew that all of said qualified voters would rely on said representations prior to and at the time of the making of each of same and knew that each of said representations was material and would induce and was intended by said Board and School District to induce voters to vote in favor of said proposal instead of against same. The change made after said election by said Independent School District and its said Board of Trustees is a material and substantial change of the purpose for which said bonds are to be used and sold and the proceeds therefrom expended. Such change is arbitrary and none of said bonds have been issued or sold and the site which said voters relied upon as represented by said Independent School District at the time of said election is presently obtainable and possible to be used in accordance with said representations.

"By reason of the above facts heretofore set out this Plaintiff, who is a duly qualified voter who voted in said election in reliance on each of said representations, and who is and at the time of said election was a taxpaying resident of said Independent School District and qualified voter therein, and said School District and each of the taxpayers and voters therein will suffer irreparable harm and injury for which they have no adequate remedy at law ..."

Appellees responded with two pleas in abatement. In the first they alleged that the essence of appellant's suit is a contest of the bond election, and that since appellant had failed to meet the jurisdictional requirement for such contest prescribed in V.A.T.S. Election Code arts. 9.03 and 9.30 by failing to give notice of the contest to any officer of District within 30 days after the return day of the election and by failing to file this suit within such 30 days, the court was without jurisdiction in the case. Appellees prayed for dismissal of the suit "for want of jurisdiction." In the second plea in abatement, appellees alleged that appellant "has not the legal capacity to sue," and that he "is not entitled to the relief sought in his Petition in the capacity in which he sues." This plea in abatement did not include a plea or prayer for the relief sought.

The record does not reflect any special exceptions to any pleading filed by the parties.

After a hearing on April 2, 1982, both pleas in abatement were sustained and separate orders were rendered on each plea dismissing appellant's suit. In the judgment on the first plea in abatement the court expressly concluded that it "does not have jurisdiction over the subject matter of this suit" and upon that ground dismissed the suit "for want of jurisdiction." The judgment on the second plea in abatement recited the court's conclusion that appellant "does not have the legal capacity to sue in the capacity in which he sues," and it ordered the...