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holding that appellant lacked standing on appeal to challenge alleged procedural due process violations against third party
Summary of this case from Genssler v. Harris Co.Opinion
No. 01-08-00063-CV
Opinion issued July 30, 2009.
On Appeal from the 165th District Court, Harris County, Texas, Trial Court Cause No. 2005-32574.
Panel consists of Justices KEYES, HANKS, and BLAND.
MEMORANDUM OPINION
This is a delinquent ad valorem tax case. Willie and Gladys Goffney appeal the trial court's judgment awarding appellees, who are numerous taxing units, delinquent ad valorem taxes, penalties, and interest on five separate accounts. We affirm.
Appellees in this case are: Houston Independent School District, the City of Houston, the Houston Community College System and Harris County, the latter for itself and on behalf of the following county-wide taxing authorities: the Harris County Education Department, the Port of Houston Authority of Harris County, the Harris County Flood Control District, and the Harris County Hospital District.
I. Background A. The Demolition of the Sakowitz Street Apartments
The Goffneys owned seven properties comprised of 11 buildings and 85 apartments at 2510 Sakowitz (the "Sakowitz Street Apartments"). The City of Houston ("City") first became involved with the Goffneys and the conditions existing at the Sakowitz Street Apartments in June 1998. After conducting a "dangerous building hearing" at which the Goffneys were present, the City issued an order that gave the Goffneys 20 days to vacate the structures, 20 days to install perimeter fencing, 20 days to obtain a City permit to secure the buildings to City specifications, and 90 days to obtain a City building repair permit or a City demolitions permit. The order also provided that if the Goffneys failed to comply with the order, the City "shall be authorized to remedy, alleviate, or remove any substandard or dangerous building" in accordance with the provisions of the Houston Comprehensive Urban Rehabilitation and Building Minimum Standards Code ("CURB") and a lien might be placed against the property "plus ten percent (10%) interest per annum until paid." The Goffneys did not comply with all of the terms of this order. Gladys Goffney testified that they engaged a contractor and went looking for a $750,000 loan "to rehab the whole project" but were unable to complete these rehabilitation efforts because of a lawsuit brought against her by Sylvia Rabson.
Different parts of the apartments also had individual street addresses.
See discussion below.
In November 1999, one of the Sakowitz Street Apartment buildings caught fire and burned. In the succeeding months, six other buildings on this property caught fire and burned. As a result, the City issued a series of demolition orders for the property. Between November 15, 1999 and May 4, 2000, the Sakowitz Street Apartment buildings were demolished by the City. The City did not hold any hearings before the buildings were demolished.
On May 11, 2000, the Dangerous Building Enforcement Neighborhood Protection Division made a "Request to Schedule Emergency Hearing" regarding the Sakowitz Street Apartments. That request was made one week after the last of the buildings was demolished.
By letters dated July 19, 2000 and sent by certified mail, return receipt requested, the City sent to all persons having an interest in the property as shown by the Harris County real property records, including the Goffneys, notice that the Sakowitz Street Apartments had been demolished because they posed "an immediate danger to the health, life or safety" of persons and that a hearing "concerning the actions taken" by the City "in connection with" the demolition of the buildings was set for August 7, 2000 at 8:30 a.m. After conducting the hearing, the City hearing officer entered several orders in which he decreed that the Sakowitz Street Apartments "were a dangerous building as defined in the City of Houston Code of Ordinances" and that the City was required to take immediate action to demolish the buildings pursuant to the City's ordinances.
B. Events in Rabson v. Goffney
On January 7, 1999, Thomas and Sylvia Rabson were awarded a judgment against Gladys Goffney stemming from Mrs. Goffney's representation of Sylvia Rabson in a will contest that terminated unfavorably to Rabson. See Goffney v. Rabson, 56 S.W.3d 186 Tex. App.-Houston [14th Dist.] 2001, pet. denied).
After filing a "Notice of Judgment Lien Interest in Community Property of Gladys R. Goffney, Wife of Willie H. Goffney," the Rabsons obtained an alias writ of execution. Actions taken based on that writ culminated in a Deed Under Execution, filed October 25, 1999, which transferred ownership of Gladys Goffney's interest in many tracts of property to Rabson and Broocks, L.P. Included in the Deed of Execution were the Sakowitz Street Apartments.
The final judgment describes this property as "Block 99, being Lots 1 through 48, together with a 16 foot alley, less and except 20 feet of the west side thereof and 17feet of the east side thereof, of Denver Addition, a subdivision in Harris County, Texas, according to the map or plat thereof recorded in Volume 55, page 160 of the Deed Records of Harris County, Texas."
The Rabsons then returned to the 55th Judicial District Court seeking appointment of a receiver. The trial court appointed Steven Weltman ("Master") as receiver and Master in Chancery "with the power and authority to take possession of and sell the non-exempt property, real and personal of Respondent [Gladys Goffney]." The trial court's order also gave the Master the authority to "take possession of and sell the community interest in any and all exempt real or personal property of Willie Goffney."
The order states in pertinent part that:
"Although this Order typically references only Respondent [Gladys Goffney] and not Respondent's spouse when identifying various types of non-exempt property, Mr. Weltman, as Receiver, is also appointed to take possession of and sell the community interest in any and all non-exempt real or personal property of Willie Goffney."
Gladys Goffney appealed the trial court's judgment to the Fourteenth Court of Appeals. The appellate court reversed the judgment in favor of the Rabsons and rendered a take-nothing judgment. As a result of the outcome of that appeal, the real property upon which the Rabsons had levied execution was reconveyed back to Gladys Goffney by a special warranty deed.
II. Procedural History
After the demolition of the Sakowitz Street Apartment buildings, the City filed this action against the Goffneys to recover a judgment in the amount of $114,051.12 for special assessments made due to the demolition pursuant to Chapter 342 of the Texas Health and Safety Code Ann., Article XI, Chapter 10 of the Houston Code of Ordinances, and Article IV, Section 9 of the City of Houston Charter. See TEX. HEALTH SAFETY CODE ANN. § 342.006 (Vernon Supp. 2008). The City and the taxing units also sought to collect delinquent ad valorem property taxes on the Sakowitz Street Apartments and other real property owned by the Goffneys for years ranging from 1999 to 2004.
Following a bench trial, the trial court found the Goffneys owed the delinquent ad valorem taxes and the special assessments to the taxing units, and awarded them the amounts due. The Goffneys timely filed a motion for new trial, which was overruled.
On appeal, the Goffneys complain of the City's demolition of the Sakowitz Street Apartments and assessment of demolition costs. In their first two issues, the Goffneys argue that the trial court erred in entering judgment in favor of the City and the taxing units because (1) the City's emergency hearing regarding the demolition of the Sakowitz Street Apartments did not comport with procedural due process and (2) sections 373 and 395 of CURB, which give the City the authority to demolish the apartment buildings and place a lien against the property for the costs of the demolition, violate their procedural due process rights guaranteed under the United States Constitution and the Texas Constitution. In their final issue, the Goffneys contend that the trial court erred in dismissing their counterclaim without a hearing.
III. Discussion
A. Standing
We will first address the City's and taxing units' contention that the Goffneys' lack standing to bring this appeal challenging the constitutionality of the August 7, 2000 hearing and the assessment of demolition fees against them. Specifically, the City contends that the Goffneys do not have standing because they did not own title to the property either at the time of this hearing or when the Sakowitz Street Apartment buildings were demolished.
The City and taxing units contend that title was held by the Master during this timeperiod.
Generally, only parties of record have standing to appeal. See Cont'l Cas. Co. v. Huizar, 740 S.W.2d 429, 430 (Tex. 1987). Standing requires that the parties have a real controversy which can actually be determined by the relief sought. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d. 440, 446 (Tex. 1993). In other words, a person has standing to appeal when he is personally aggrieved by the alleged wrong. Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996).
In this case, the trial court signed a judgment for damages against the Goffneys based on evidence regarding the outcome of the municipal hearing held on August 7, 2000, the City's demolition of the Sakowitz Street Apartment buildings, and the City's assessment of the demolition costs. At trial, the City contended that it had the authority to seek recovery of the demolition costs under CURB. Thus, regardless of whether the Goffneys had legal title to the property at the time of the City's hearing, demolition, and assessment of demolition costs, they were personally aggrieved by the entry of a judgment holding them liable for costs incurred in connection with the City's actions, including its enforcement of CURB, and the resolution of the issues presented on appeal challenging the legality of those actions will affect the Goffneys' interests. Under these circumstances, we conclude that the Goffneys have standing to appeal the City's and taxing units' judgment. See Nevada Gold Silver, Inc. v. Andrews Indep. Sch. Dist., 225 S.W.3d 68, 74 Tex. App.-El Paso 2005, no pet.).
B. Due Process Challenge to August 7, 2000 Hearing
In their first issue, the Goffneys contend that the trial court erred in entering judgment in favor of the City and the taxing units because the City violated the Master's constitutional right as an "owner" of the property to procedural due process by failing to notify him of the August 7, 2000 hearing regarding the demolition of the apartments. The Goffneys argue that they have standing to assert the Master's procedural due process claims because their "equitable" title to the property merged with the Master's "legal" title to the property at the conclusion of the Rabson litigation.
Additionally, the Goffneys contend that the City violated the CURB ordinance's requirement that a hearing be conducted no later than 90 days after a demolition. As a result, the Goffneys argue, the City's hearing officer lacked subject matter jurisdiction to enter any orders concerning the property at the August 7, 2000 hearing. For these reasons, the Goffneys contend that the entire hearing was unlawful and any order issued by the hearing officer concerning the demolition and the assessment of demolition costs cannot serve as the basis for the trial court's judgment against them. We find these arguments unpersuasive.
The Goffneys have no standing to assert any constitutional due process rights belonging to the Master. Generally, only the entity that has not been properly served with notice has standing to challenge the violation of its procedural due process rights. See Sw. Constr. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859, 864 Tex. App.-Texarkana 2005, pet. denied). With the single exception of the principle allowing an insurance company to stand in the shoes of its insured, we have found nothing in our statutes or Texas caselaw that supports the Goffneys' position that a defendant in a civil suit has standing to challenge, on procedural due process grounds, whether a third party has been properly given notice of a hearing; nor have the parties directed this Court's attention to any such authority. See id. No evidence in the record indicates that the Master assigned his right to assert such a claim to the Goffneys. Based on the absence of authority and evidence in support of the Goffneys' novel standing argument, we reject their attempt to assert the Master's procedural due process claims. Nor were the Goffneys personally deprived of procedural due process as a result of the lack of notice to the Master. The record reflects that the lack of notice to the Master did not, in any way, prevent the Goffneys from receiving notice or having an opportunity to air their complaints at that hearing regarding the City's conduct. It is undisputed that the Goffneys received actual notice that the City demolished the Sakowitz Street Apartments because they posed "an immediate danger to the health, life or safety" of persons, and that a hearing "concerning the actions taken" regarding this property by the City was set for August 7, 2000 at 8:30 a.m. The notice advised the Goffneys that, at the hearing, they could "appear in person and/or be represented by counsel" and that they would be able to "present testimony and cross examine all witnesses" at the hearing. The Goffneys do not complain on appeal that the City's hearing officer prevented them from exercising any of these rights.
The notice was sent to the Goffneys and Rabson and Broocks as "Owner[s], Agent[s], Lienholder[s] and/or Interested Part[ies]."
Finally, the City's failure to hold the hearing within the CURB ordinance's 90-day time limit for setting "emergency" hearings does not deprive the City hearing officer of subject matter jurisdiction to enter orders regarding the Sakowitz Street Apartments. The CURB ordinance creates the position of hearing official and grants him certain powers and responsibilities regarding demolished properties. Specifically, pursuant to CURB sections10-317, 10-365 and 10-432, the hearing official designated by the Houston Chief of Police, is empowered to conduct and issue rulings in the type of post-deprivation hearing now challenged by the Goffneys. See HOUSTON, TEX., COMPREHENSIVE URBAN REHAB. AND BLDG. MIN. STANDARDS CODE, ch. 10, art. IX, §§ § 317, 365, 432 (2009). Nowhere does the CURB ordinance state that the 90-day time limit is a jurisdictional requirement for a post-deprivation hearing like the August 7, 2000 hearing held in this case. See, e.g., Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999) (holding that "just because a statutory requirement is mandatory does not mean that compliance with it is jurisdictional."). Accordingly, the City's failure to hold the post-deprivation hearing within 90 days of the first demolition does not deprive the City's hearing officer of subject matter jurisdiction regarding the Sakowitz Street Apartments.
Section 10-432 of CURB provides that an emergency hearing "shall be held no later than 90 days after the director has taken action under this division, unless all persons of record either having an ownership interest or a possessory interest in the building or structure consent to a longer period." HOUSTON, TEX., COMPREHENSIVE URBANREHAB. AND BLDG. MIN. STANDARDS CODE, ch. 10, art. IX, § 432 (2009).
Since the 90-day limit for setting hearings under CURB is not jurisdictional, the Goffneys must have presented their arguments regarding the City's alleged failure to comply with this time limit to the trial court, or these arguments are waived on appeal. See Hassan v. Greater Houston Transp. Co., 237 S.W.3d 727, 731 Tex. App.-Houston [1st Dist.] 2007, pet. denied) (holding arguments regarding compliance with mandatory, nonjurisdictional requirements can be waived if not timely asserted). Texas Rule of Appellate Procedure 33.1 requires that a party present the complaint to the trial court in a manner that states "the grounds for the ruling . . . with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds [are] apparent from the context." TEX. R. APP. P. 33.1(a)(1)(A).
A review of the record reveals that the Goffneys did not present any arguments to the trial court regarding the time limit for setting emergency hearings, nor did they reference the pertinent section of the ordinance. Therefore, the Goffneys did not preserve this issue for appeal. See id. Accordingly, the Goffneys' first issue is overruled.
The record likewise does not contain any evidence that, after receiving notice, the Goffneys ever complained to the hearing officer that the August 7, 2000 hearing was untimely under CURB.
C. Due Process Challenge to sections 373 and 395 of CURB
In their second issue, the Goffneys argue that sections 373 and 395 of CURB violate the procedural due process requirements of the Fourteenth Amendment of the United States Constitution and the Texas Constitution. Section 373, Article IX, Chapter 10 of the City of Houston's Code of Ordinances sets forth the administrative expenses of inspecting buildings, locating owners, conducting hearings, and issuing notices and orders. Section 395 of the ordinance provides that the cost of the work and the administrative expenses incurred in vacating, securing, repairing or demolishing a dangerous building shall constitute a lien on the property. The Goffneys contend that these ordinances are unconstitutional because they fail to provide procedural due process, specifically "an opportunity to promptly receive actual notice of the charges for demolition or any other costs associated with the demolition as soon as the costs occur rather than simply receiving constructive notice of the filing of a lien." The Goffneys also argue that these ordinances fail to provide property owners with an opportunity to be heard regarding any cost discrepancies. The City and the taxing units respond that, pursuant to Texas Rule of Appellate Procedure 33.1, the Goffneys have waived these arguments on appeal because they failed to present them to the trial court. We agree.
Article IX, Chapter 10, section 373 of the City of Houston Code of Ordinances reads as follows:
(a) The city council hereby finds and declares that the general administrative expenses of inspecting buildings, locating owners, conducting hearings, issuing notices and orders, together with all associated administrative functions require the charge of not less than $450.00 for each lot, adjacent lots under common ownership or tract of land for which an order is issued under this division, and such minimum charge is hereby established and declared to be the charge for such administrative expenses to be assessed in each instance where the city secures, demolishes or performs other work in connection with an order or contracts for such services thereon. Notwithstanding any tabulation of recorded costs a charge of not less than $450.00 is hereby expressly stated to be a minimum charge. Further, the costs of securing, demolishing or performing other work in connection with an order either by the city or by persons doing so under contract with the city, shall be separately calculated and assessed in each instance in which the city takes the described action pursuant to this division.
(b) The neighborhood protection official shall certify all administrative expenses and costs of vacating, securing, repairing or demolishing a building or buildings incurred by the city or by the persons doing so under the contract with the city as a charge that shall be assessed the owners thereof; and shall constitute a lien on the land on which the building or buildings are or were situated, privileged over all other liens to the maximum extent allowed by law. Upon the filing of the lien statement with the county clerk, the charges shall bear interest at the rate of ten percent per annum until paid.
(c) If the city has let a contract for demolition of a building pursuant to a valid order issued under the division and the building is subsequently repaired or demolished by the persons other than the city or its contractors prior to completion of the contract let by the city, or such demolition is not carried out due to events beyond the city's control, the administrative expenses and all costs for cancellation of the demolition contract shall be certified as a charge that shall be assessed against the owner thereof, and that shall constitute a lien on the land on which the building or buildings are or were situated, privileged over all other liens to the maximum extent allowed by law. Upon the filing of the lien statement with the county clerk, the charges shall bear interest at the rate of ten percent per annum until paid.
HOUSTON, TEX., COMPREHENSIVE URBAN REHAB. AND BLDG. MIN. STANDARDS CODE, ch. 10, art. IX, § 373 (2009).
Article IX, Chapter 10, section 395 of the City of Houston Code of Ordinances reads as follows:
If the city causes any dangerous building or vector conditions to be abated with its own employees or through contractors, the cost of the work and the administrative expenses incurred for the work performed under this division shall constitute a lien on the property. The director shall determine the amount of the lien and cause a statement to be filed in the real property records of the county in which the property is located. Upon the filing of the lien statement, the city shall have a lien, privileged to the maximum extent allowed by law, upon the expenditure so made. Such charges shall bear interest at the rate of ten percent interest until paid.
HOUSTON, TEX., COMPREHENSIVE URBAN REHAB. AND BLDG. MIN. STANDARDS CODE, ch. 10, art. IX, § 395 (2009).
The Goffneys have not preserved error regarding their constitutional due process challenges to sections 373 and 395 of CURB because they failed to present these arguments to the trial court. See TEX. R. APP. P. 33.1(a)(1)(A). The record refects that, at trial, the Goffneys did not plead or argue that these ordinances violated either the Texas or United States Constitution.
A party must first present due process arguments to the trial court to pursue them on appeal. See, e.g, In re L.M.I. J.A.I, 119 S.W.3d 707, 711 (Tex. 2003); Ratsavong v. Menevilay, 176 S.W.3d 661, 671 (Tex.App.-El Paso 2005, pet. denied) (due process arguments waived when they were not brought to trial court's attention); Santos v. Comm'n for Lawyer Discipline, 140 S.W.3d 397, 404-05 (Tex.App.-Houston 2004, no pet.); McDonald II v. State, 693 S.W.2d 660, 661 (Tex.App.-Dallas 1985, no writ).
Notwithstanding their arguments on appeal, the Goffneys did not present any arguments to the trial court that made the court aware that they were raising a due process challenge as to the mechanism by which costs are imposed under the ordinance or as to the ordinance itself. In their "Original Answer to Plaintiffs' Second Amended Petition for Taxes and Claim for City of Houston Special Assessments," and in their counterclaim, the Goffneys make only one passing mention of due process. In their original answer, the Goffneys' complain of the City's failure to notify them of the emergency hearing. The Goffneys' counterclaim addresses the City's failure to send notice of the demolishment and the demolition lien to the correct address. Such solitary and passing references to due process without any specific citation to caselaw were insufficient to alert the trial court or the opposing parties that the Goffneys were asserting a constitutional complaint regarding the ordinances themselves. See Lee v. City of Houston, No. 14-05-00366-CV, 2006 WL 2254401, at *4 (Tex.App.-Houston Aug. 8, 2006, pet. denied) (mem. op.) (holding single reference to due process insufficient to assert due process challenge on appeal). Furthermore, the due process arguments the Goffneys raise on appeal, which concern the ordinance itself, do not comport with the due process arguments they attempted to raise in the trial court regarding notice of hearing and demolition. See Wolfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex.App.-Houston [14th Dist. 2005], pet. denied) (holding that to preserve error, party's argument in trial court must comport with argument on appeal). Accordingly, error was not preserved under Rule 33.1 and we overrule the Goffneys' second issue.
In a sub-argument the Goffneys contend that "application of the procedure" under the City ordinances was "unconstitutional" because there was a "pattern of abuse and arbitrary action" that was "discernable from review" of the City's application of a "summary procedure." The record reflects that this constitutional argument was not raised before the trial court either.
D. Dismissal of the Goffneys' Counterclaim Without a Hearing
In issue three, the Goffneys contend that the trial court erred in dismissing their counterclaim without a hearing.
Texas Rule of Appellate Procedure 38.1(h) requires that an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(h). "Rule 38 requires [a party] to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue." Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). Issues on appeal are waived if an appellant fails to support his contention by citations to appropriate authority. Abdelnour v. Mid Nat'l Holdings, Inc., 190 S.W.3d 237, 241 (Tex.App.-Houston 2006, no pet.); Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex.App.-Houston 2005, no pet.)
The Goffneys' argument with respect to their third issue does not cite any authority in support of their contention that the trial court was required to hold a hearing before dismissing their counterclaims. We therefore hold that the Goffneys have waived their third issue because of inadequate briefing. TEX. R. APP. P. 38.1(h); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex.App.-Houston 2002, no pet.)
IV. Conclusion
For the foregoing reasons, we overrule the Goffneys' issues and affirm the trial court's judgment.