Duffard v. City of Corpus Christi, 13561
| Decision Date | 17 February 1960 |
| Docket Number | No. 13561,13561 |
| Citation | 332 S.W.2d 447 |
| Parties | Walter F. DUFFARD et al., Appellants, v. CITY OF CORPUS CHRISTI, Appellee. |
| Court | Texas Court of Appeals |
William H. Bloch, Corpus Christi, for appellants.
I. M. Singer, City Atty., J. F. Park, Assts. City Atty., Milton W. Walton, Corpus Christi, for appellee.
This was an appeal to the District Court by appellant Walter F. Duffard and other property owners along Alameda Street in the City of Corpus Christi, pursuant to Article 1105b, Sec. 9, Vernon's Ann.Tex.Civ.Stats., praying that the assessments fixed by Ordinance No. 5305 of the City of Corpus Christi be voided and cancelled, and that a new public hearing, pursuant to Article 1105b, be held by the City Council of said city. Appellee, City of Corpus Christi, answered by a general denial and special pleas, and filed a motion for summary judgment supported by various items of documentary evidence and an affidavit. Appellants filed an answer to said motion for summary judgment and a counter-motion for summary judgment, supported by an affidavit. Upon a hearing of said motions for summary judgment, the trial court denied appellants' motion and granted appellee's motion and rendered judgment accordingly.
Appellants' principal contention is that the trial court erred in granting appellee's motion for summary judgment, for the reason that the respective motions and affidavits of the parties raised genuine issues of fact for determination by the court or jury. Appellants do not question the regularity or sufficiency of any of the proceedings had under the provisions of Article 1105b, supra, up to the public hearing before the City Council.
Appellee, City of Corpus Christi, supported its motion which was duly authenticated by affidavit of the City Secretary, setting forth the details of the procedure up to and including the public hearing. The motion was further supported by a certified transcript of the proceedings, statements and testimony in the public hearing held on February 11, 1959, in connection with the making of assessments against abutting property along the street proposed to be paved. The transcript shows that the roll of all property owners affected by the proposed assessment was called, and each was given an opportunity to ask questions, make statements and comments, and voice their objections. It also shows that certain adjustments were made by the City Council in certain cases in which the Council determined that there were inequities in the assessments.
Appellants' motion and reply to appellee's motion, together with the affidavit of Walter F. Duffard in support thereof, consist of conclusions of law, and ultimate conclusions not based on material facts concerning which the witness could properly testify upon a trial, and which would raise any genuine issue of fact necessary to a determination of the case, with the one exception that it is contended, as a matter of law, the front foot rule or plan is inapplicable, because appellants' residential properties do not front on Alameda Street, but side thereon. This exception will be later discussed. The affidavit of Walter F. Duffard adopts and makes a part thereof all the allegations of appellants' petition as well as their motion for summary judgment. We are of the opinion that an affidavit which simply adopts the pleadings in the case is insufficient either in support of or in opposition to a motion for summary judgment. Rule 166-A, Subd. (e), Texas Rules of Civil Procedure; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832. To permit such practice would in our opinion destroy the Rule. Subdivision (e) of the Rule provides:
A mere restatement of the allegations of the pleadings is insufficient. Bliss v. City of Fort Worth, Tex.Civ.App., 288 S.W.2d 558. So are general...
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