Hart v. City of Dallas

• Decision Date: 20 April 1978
• Docket Number: No. 1117,1117
• Citation: 565 S.W.2d 373
• Parties: Levoy HART, Appellant, v. CITY OF DALLAS, Appellee.
• Court: Texas Court of Appeals

Page 373

565 S.W.2d 373

Levoy HART, Appellant, v. CITY OF DALLAS, Appellee.

No. 1117.

Court of Civil Appeals of Texas,Tyler.

April 20, 1978.

Michael M. Daniel, Dallas Legal Services Foundation, Inc., Dallas, for appellant.

Linda R. Lawson, Asst. City Atty., Dallas, for appellee.

McKAY, Justice.

Appellant, Levoy Hart, filed suit against the City of Dallas alleging that the City of Dallas had ordered the demolition of his residence at 6723 Hialeah Street, Dallas, because such residence was not in compliance with the City of Dallas Minimum Urban Rehabilitation Standards Code and asking for a temporary and a permanent injunction against the City to prevent the ordering or accomplishment of the demolition of the premises. Appellee, City of Dallas, answered by general denial and alleged that the premises of appellant were in violation of the Urban Rehabilitation Standards Ordinance of the City of Dallas and other codes and ordinances of the City, and were unfit for human habitation and constitute nuisances and hazards under the ordinances of the City and the laws of the State of Texas.

Trial was had before the court without a jury, and the court entered judgment that the permanent injunction prayed for be denied and that a temporary order which enjoined the City from demolishing the residence be in all things dissolved.

The trial court made findings of fact and conclusions of law as follows:

"FINDINGS OF FACT

I.

"That Plaintiff is the owner of the property and structure located at 6723 Hialeah Street within the City of Dallas.

II.

"That the structure and property fails to meet minimum standards of the Dallas Building Code.

III.

"That the owner of the property was first notified of this noncompliance by certified letter mailed in September, 1974; that thereafter there were numerous contacts with the owner by Urban Rehabilitation Inspectors seeking voluntary compliance; that because the owner failed to repair his property, notice was served on said owner, Plaintiff in this cause, of a hearing before the Urban Rehabilitation Standards Board to be held on February 11, 1976; that after said hearing with all parties present, Plaintiff was given seventy (70) days by the Urban Rehabilitation Standards Board in which to obtain a building permit and rehabilitate his property with the condition that the failure to so repair would be cause for issuance of a demolition order; that on May 12, 1976, the Urban Rehabilitation Standards Board found that Plaintiff had failed to comply with its order and issued a demolition order; that on June 23, 1976, Plaintiff's appeal of this order was denied; that in mid-August of 1976, Plaintiff was permitted another hearing before the Urban Rehabilitation Standards Board, at which time the order for demolition was sustained.

IV.

"That among the violations contained on said property are, but not limited to, the following:

"A. Structural violations;

(1) Protect exterior surfaces;

(2) Provide and maintain railings for steps;

(3) Repair holes and cracks in steps;

(4) Maintain structure in weather tight and water tight condition;

(5) Maintain floors, walls, ceilings and all structural members in sound condition;

(6) Repair hot water heater connection;

(7) Repair holes, cracks, and breaks in walls and ceilings.

"B. Utility violations:

(1) Disposal of food and waste impossible;

(2) No potable water;

(3) Connect plumbing and heating fixtures.

V.

"That the owner has been given opportunity to repair these violations and has failed to do so.

VI.

"That the only repairs which have been made to the structure are cosmetic and not structural.

VII.

"That the house is structurally unsound due to failure of the foundation and support beams.

VIII.

"That to repair this structure to meet the minimum standards of the Dallas Building Code would require substantial reconstruction of the said structure.

"CONCLUSIONS OF LAW

I.

"That all requirements of the Dallas City Code were met, the Plaintiff was afforded an opportunity to be heard and the demolition order is fair and reasonable.

II.

"That the property in question is maintained in such a manner as to be unfit for human habitation and is a nuisance.

III.

"That Plaintiff is not entitled to injunctive relief preventing the City of Dallas from implementing its demolition order."

Appellant first complains that the trial court erred in entering judgment for appellee on its finding and conclusion that appellant's house constituted a nuisance because there was no evidence to support such a finding or conclusion, and because such finding and conclusion were supported by factually insufficient evidence. It is necessary to detail the evidence with particularity in order to address ourselves to these two complaints.

The witness D. H. Conner, coordinator of Codes Compliance for the City of Dallas for nine years, testified that it was his duty to oversee and be the liaison between the City of Dallas and the Urban Rehabilitation Standards Board and oversight for the gathering of evidence to present in actions in the district court or the municipal courts related to violations of the City codes. He further testified that the trim on the brick structure belonging to appellant was deteriorated and daylight could be seen through some of those holes; that there was a violation of clause (3) of subsection (b) of section 27-11 of Ordinance No. 15,198, ¹ in that there were repair holes, cracks and other defects capable of causing injury to a person on the stairs, porches, steps and balconies; that with respect to subsection (5) there was "evidence of some cracks which communicated from the exterior of the structure and were reflected by breaks on the wall on the inside and a gypsum board on the inside walls of the structure such that they were not weather tight; that there was differential settlement in the brick, especially at the corners of the structure, both rear corner and the front corner and evidence of the differential settlement of the monolithic slab in such areas which cause settlement and breaks to appear; that the west wall of the structure had pulled away on the inside on the loadbearing partition between the living room and the dining room a distance of several inches, and the west wall is not plumb by several degrees."

He further testified as to utility standards that he believed that there was no down-draft diverter in the hot water heater flue connection; that as of mid-March, 1976, there was no electric power connected to the house, and no gas there, and no water; and it would be impossible without gas or electricity to light the house, and without water, to dispose of human waste and other waste; there would not be potable water nor a device to supply a hot water heater at a constant water temperature of 120o Fahrenheit; that subsection (c)(5) (to provide and connect a kitchen sink, bathtub or shower, and lavatory to a cold and hot water source) could not be complied with without water; that without gas there was no facility to provide heating equipment capable of maintaining a minimum of 68o Fahrenheit; that there was no solid fuel burning equipment (appellant testified that as of the date of trial water and electricity were connected but the gas was not connected).

Conner further added that if the defects were not corrected there would be a major failure of the brick veneer; that there was damage to the roof sheeting (sic); that in his opinion, by definition of the ordinance, the house was not fit for human habitation as it then stood, and that for the house to be brought up to the code standard would involve a major reconstruction, if not a complete rebuilding of the structure; that to repair the house properly would cost from $12,500 to $15,000; that after the house was under an order of demolition, the power company and the gas company were asked to remove the electric and gas meters and discontinue such service at that location for reasons of fire, health and life safety, and to prevent other persons from making unauthorized entry and perhaps setting fire to it; that service was restored after this suit was filed and an order issued by the court; that the slab could be corrected by hydraulic pressure using quick-setting cement for approximately $10,000, and to put piers down to correct it would cost approximately $7,500, and shoring it up and putting in piers would approximate $5,000 to $6,000, but if appellant did the work himself it could be done for about one-half of these amounts.

There was introduced in evidence an "O.K." tag by the City plumbing inspector as of April 22, 1977.

The witness Leon Hurse, an employee of the City of Dallas Public Works Department, Property Management Division, as a real estate appraiser who had been such appraiser for eleven years, testified that he had a B.S. Degree from East Texas State University, and had real estate appraisal courses at Southern Methodist University and real estate law and property management from S.M.U., and had done appraisal work since 1949. Hurse further testified that his estimate of the cost of repairing the house was about $16,250, and that the repairs needed were foundation (considerable), roof, interior walls, floor, electrical work, plumbing, and replace the front porch and various overall repairs to bring the house up to the City of Dallas Code standards; that if these repairs were made the house would have a value of from $22,000 to $24,750; that the house would probably have a negative value for prospective buyers in its then condition, and the lot probably would have more value without the house on it, and it would not be economically feasible to make the necessary repairs and "would be best just to tear it down and start from scratch"; that without making any repairs the house and lot would be worth about $4,500, and that to repair the house would cost approximately $2,500 for foundation, $1,500 for the roof, $2,200 for the floors and walls, $650 for...