

NO. 07-10-0279-CV
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL C 
 
 JULY 26, 2011

 
 

 
 
CITY OF FORT WORTH, TEXAS, APPELLANT
 
v.
 
JAMES F. PARK, APPELLEE 

 
 

 
 FROM THE 96TH DISTRICT
COURT OF TARRANT COUNTY;
 
NO. 096-236731-09; HONORABLE JEFF WALKER, JUDGE

 
 

 
Before QUINN, C.J., PIRTLE, J.,
and BOYD, S.J.[1]
 
MEMORANDUM OPINION
            Appellant,
City of Fort Worth, appeals from entry of summary judgment in favor of
Appellee, James F. Park, in the City's action seeking to enforce a prior order
by the City's Building Standards Commission ("Commission") assessing
civil money penalties for violations of the City's Minimum Building Standards
Code ("Code") and an injunction requiring Code compliance.[2]  In support, the City asserts the trial court
erred in granting summary judgment in Park's favor because (1) Park's summary
judgment motion was an impermissible collateral attack on the City's order
imposing civil penalties and (2) even if Park's collateral attack were considered
a timely direct attack on the civil money penalties, Park failed to prove the
elements of his constitutional challenges as a matter of law.  We reverse and remand for proceedings
consistent with this opinion.  
Background
            Park
owns a single family house located at 2317 Oakland Boulevard in Fort Worth,
Texas (property).  This house is not his homestead.  Park lives elsewhere in Arlington, Texas.  Since March 21, 1996, Park has received numerous
notices from the Commission requiring his compliance with the Code but has not taken
any corrective action.  
            January
28, 2008 Hearing
            On January 28, 2008, the Commission
held a hearing on the property's deficiencies.[3]  Park appeared at the hearing and did not
dispute the deficiencies.  He asked the
Commission to defer ruling so that he could develop a plan for correcting the
deficiencies.  Park indicated that he was
leasing land for oil and gas purposes and would soon have the money to
undertake repairs.
            Two neighbors appeared before the
Commission:  Gigi Goesling and Wanda Conlin.  They testified that the house had been
falling down and in disrepair for ten years. 
Aside from presenting an eyesore, Goesling indicated vagrants were
living in the house and outdoor scaffolding was a safety hazard for children playing
in and around the house.  Goesling and
Colin urged the Commission to take action. 
Park did not question the neighbors. 
The Commission gave Park seven days to remove the scaffolding, thirty
days to return with a plan of action and continued the case until their meeting
in February.
            February
25, 2008 Meeting
            At
the Commission's February meeting, Park returned with an action plan and
requested that he be given one hundred eighty days to repair the
structure.  Although he did not have a
contractor yet, he indicated he did have the funds available to complete the
repairs and the one hundred-eighty day schedule was entirely possible to
complete.  
            Goesling and Conlin again testified
at the hearing.  Goesling presented the
Commission with more recent pictures of the structure indicating no work had
been undertaken to correct the deficiencies. 
She also expressed frustration with how long the deficiencies had
existed.  Conlin testified that the
neighborhood association had assisted Park to obtain a historic designation for
the property so he would qualify for tax incentives to offset repair costs.  Both witnesses urged the Commission to
act.  Park did not question either
Goesling or Conlin.
            The Commission permitted Park ninety
days to repair the structure, or until May 25th subject any requests for more
time if necessary.  The Commission
indicated that, if at the end of the ninety days the house was not repaired,
the Commission would hold a civil penalty hearing. 
            June
23, 2008 Hearing
            At the June 23rd hearing, Park
appeared before the Commission to request an additional one hundred eighty days
to complete the repairs.  When asked what
work Park had done since he was granted the ninety days at the February
meeting, Park responded that "I've done a lot, but I haven't done a lot on
this house.  It's that simple."  Park also testified that, since the January
25th meeting, there had been little done to the house itself other than maintaining
the outside of the property, i.e., mowing the grass, and "[t]here hasn't
been much of anything done in the past two years." 
            The Commission subsequently heard
testimony from Colin, Goesling and Mike Phipps. 
Colin testified to the duration of the Code violations and the general
condition of the property---the presence of vagrants and vermin.  Goesling testified Park had not sought any
permits to undertake the work he promised earlier.  Phipps testified he first complained about
the property nine years earlier when they tried to work with Park but nothing
has been done.  All three witnesses urged
the Commission to take action.  Park did
not question any of the witnesses.  At
the conclusion of the hearing, the Commission denied Park’s request for more
time and informed him of his right to request an appeal of their ruling to the
Appeals Board within thirty days.  
            July
24, 2008 Appeals Board Hearing
            At the Appeals Board hearing, Park
testified that he had entered into a verbal sales contract with a potential buyer
for the property who was aware of its deficiencies and was going to bring the property
up to Code.  In addition, he also
indicated that he had only known the man several weeks, spoke to him over the
phone, the man had not seen the property and there was no timeline on when the
transaction would be closed.
            Conlin testified as to the structure's
disrepair and the present lack of any permits to begin repairs.  Phipps testified to the general lack of
repairs to the property over the past ten years.  Louis McBee testified that he has seen the
property on a daily basis for the past six years and has never seen anyone on
the property making repairs of any kind. 
All the witnesses urged the Appeals Board to uphold the Commission's
decision not to grant a further extension. 
At the conclusion, the Appeals Board affirmed the Commission's
decision.  Park was informed of his right
to appeal the decision to district court. 

            


            July
28, 2008 Hearing
            A civil
penalty hearing was held the morning of July 28 wherein the Commission assumed Park
was absent but with notice that the hearing was scheduled for the morning.  Goesling asked the court to make any fines
high to send Park a message.  Colin
opined that Park had no intention to repair the house as evidenced by the length
of the proceedings and stated she had no new evidence.  McBee urged the Commission to act as aggressively
as possible and expressed some confusion with the administrative process.  At the conclusion of the evidence, the staff
recommended a civil penalty of $100 per day for 64 days or $6400. In support of
the fine, the Commission members considered the considerable length of time the
matter was pending with no progress, Park’s broken promises to make the
repairs, the time spent by the neighbors and neighborhood association coming to
administrative meetings and hearings, and approved a fine of $300 per day for
64 days or $19,200.
            In the afternoon, a hearing on the
structure was re-opened on the motion of the Commission.  Chairman Tinsley made the following
statement:  
Before we get started, we
heard testimony this morning on this case from interested parties, and then we
found out that Mr. Park's notification to be here was 1 o'clock.  So, in all fairness to Mr. Park, the---if the
Commissioners would disregard any testimony they heard from interested parties
this morning and just base it upon the evidence that we have here at hand at
this particular time, which would be Mr. Park and anybody else's testimony that
comes before us right now, in addition to any evidence that we have been
presented by the staff.
 
            The
issue at the hearing was whether any civil penalties would be assessed for the
noncompletion of the action plan submitted by Park in February.  At the hearing, Park designated Ron Dabelow as
his spokesperson.  Dabelow requested a
sixty day extension to consummate a sale of the property from Park to John
Brewer.  He indicated there was a verbal telephonic
agreement although Brewer had not seen the property.  Dabelow informed the Commission that Brewer
intended to rehabilitate the property and bring it up to Code.  He could not give the Commission a time frame
for the property's sale or its rehabilitation, nor did he know anything about Brewer's
credit status.  He did testify that, if
he was unable to complete the contract, they would look for another buyer.
            Dabelow further testified Park had
since 1996 to resolve the issues before the Commission and had not complied
with the Commission's prior orders.  Park
testified that the property had not been up to Code in nine and one half years
of his ownership.  The City's staff again
recommended a civil penalty of $100 a day for 64 days or $6400.  Based upon the lack of improvement in the
property's condition over a lengthy period of time, the egregious nature of the
case, the uncertainty of any sale to Brewer, and Park’s broken promises, the
Commission fined Park $300 a day for 64 days or $19,200, and informed him of
his right to appeal his case to the Fort Worth Appeals Board within 30 days.  It is undisputed that Park did not appeal the
Commission's order imposing civil monetary penalties.[4]
            In 2009, the City filed its original
and first amended petitions seeking an injunction requiring Park's compliance
with the Minimum Standards Building Code and recovery of the civil penalties
assessed by the Commission, interest and additional penalties together with
interest thereon.  In February 2010, Park
filed a motion for summary judgment and, in March, the trial court granted his
motion without stating its grounds for judgment.  This appeal followed.
Discussion
            The City asserts the trial court
erred in granting summary judgment in Park’s favor because (1)
Park's summary judgment motion was an impermissible collateral attack on the
City's order imposing civil penalties and (2) even if Park’s collateral attack
were considered a timely direct attack on the civil money penalties, Park
failed to prove the elements of his constitutional challenges as a matter of
law.   Because the City's second issue is
dispositive, we will consider it first.
            Standard
of Review
            We
review the trial court's summary judgment de
novo.  Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003) (citing FM Props. Operating Co. v. City of Austin, 22
S.W.3d 868, 872 (Tex. 2000)). 
Summary judgment is appropriate when there is no genuine issue as to any
material fact and judgment should be granted in favor of the movant as a matter
of law.  Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846
(Tex. 2003) (citing KPMG Peat Marwick v.
Harrison County Hous. Fin. Corp.,
988 S.W.2d 746, 748 (Tex. 1999)).  A defendant is entitled to summary judgment
on an affirmative defense if the defendant conclusively proves all the elements
of the affirmative defense.  Id.; Rhone-Poulenc, Inc., 997 S.W.2d 217, 222-23 (Tex. 1999).  To accomplish this, the defendant-movant must
present summary judgment evidence that establishes each element of the
affirmative defense as a matter of law.  Ryland Group, Inc. v. Hood,
924 S.W.2d 120, 121 (Tex. 1996) (per
curiam).  
            In reviewing a trial court's summary
judgment, we resolve all doubts against the movant, and we view the evidence in
the light most favorable to the nonmovants.  Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001).  Additionally, in determining whether a
disputed material fact issue exists, we take as true evidence favorable to the
nonmovant.  Id. (citing American Tobacco
Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)).  If a trial court's order granting summary
judgment does not specify the basis for the trial court's ruling, the summary
judgment will be affirmed if any of the theories advanced by the movant are
meritorious.  Joe v. Two Thirty Nine JV, 145
S.W.3d 150, 157 (Tex. 2004).
            Due
Process --- Adequate Notice and Right to Confrontation
            In
administrative proceedings, due process requires that parties be afforded a
full and fair hearing on disputed fact issues. 
City of Corpus Christi v. Public
Utility Commission of Texas, 51 S.W.3d 231, 262 (Tex. 2000) (citing Richardson v. City of Pasadena, 513
S.W.2d 1, 3 (Tex. 1974)).[5]  This includes the requirement that litigants
receive notice and an opportunity to be heard at a meaningful time and in a
meaningful manner.  University of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 930
(Tex. 1995) (citing Mathews v. Eldridge,
424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).      
            The
right to cross examine adverse witnesses and to examine and rebut all evidence also
applies to administrative hearings.  Rector v. Texas Alcoholic Beverage
Commission, 599 S.W.2d 800, (Tex. 1980).  See
City of Corpus Christi, 51 S.W.3d at 263 (an agency's procedures may violate
a litigant's right to confront witnesses if a denial of due process prejudices a
litigant's substantial rights); Texas
Health Facilities Commission v. Charter Medical-Dallas, Inc., 665 S.W.2d
446, 454 (Tex. 1984) (an agency's decision may be arbitrary and capricious if a
denial of due process has resulted in prejudice of a litigant's substantial
rights).
            Park’s sworn affidavit in support of
his motion and exhibits indicate that he was notified to appear for the July
28, 2008, civil penalty hearing at 1:00 p.m. 
When he arrived at the hearing room at the appointed time, he was
informed that a hearing on civil money penalties had taken place that morning,
in his absence, and several witnesses had testified.  
            In response, the City filed the
affidavit of Sarah Ireland, an Administrative Technician for the Code
Compliance Department of the City of Fort Worth, as well as complete
transcripts of the proceedings described earlier in this opinion.  Ireland's affidavit indicates Park had
originally been sent a notice indicating the civil penalty hearing would take
place on July 28 in the morning but, due to a clerical error, a subsequent
reminder notice indicated the hearing was to take place on July 28 in the
afternoon.
            In the afternoon, the Commission
acknowledged their error and re-opened the hearing.  Prior to taking any evidence, the Chairman instructed
the remaining Commissioners to disregard all testimony heard in the morning
hearing and base their decision on the evidence presented in the afternoon
hearing including Park’s testimony, anyone else's testimony and evidence
presented by the staff.  The hearing then
proceeded without objection and in the same manner as the morning hearing but without
the participation of the witnesses that testified earlier.  Park fully participated through his
spokesperson who presented evidence on Park’s sole defense or contention, i.e.,
an oral agreement had been made to sell the property and the prospective owner had
agreed to bring the property up to Code. 
As in previous hearings, Park did not contest the property's
deficiencies, their duration, his failure to meet
prior deadlines or whether he had violated prior Commission rulings.  Park and his spokesperson were permitted to
speak, testify and ask questions.  When
asked by the Chairman at the hearing's conclusion whether there was anything
else they wanted to add, Park’s spokesperson responded:  "No, we just appreciate your
time."  
            Interpreting the evidence in favor
of the nonmovant, Park has failed to prove as a matter of law that he is
entitled to summary judgment on his due process issues of inadequate notice and
right to confrontation because fact issues remain, i.e., whether notice was inadequate
despite Park’s full participation in the afternoon hearing,[6]
whether Park waived any alleged due process violations by not objecting during
the afternoon hearing,[7]
whether there is evidence that the Chairman's admonition was insufficient to
limit the Commission's decision-making to the evidence presented in the
afternoon hearing[8]
and, if so, whether Park can establish any harm or prejudice to his substantial
rights by not being able to cross-examine the witnesses who testified at the
morning hearing.[9]  For these reasons, we must find that the
trial court erred in granting Park’s motion for summary judgment.  
            Accordingly, the City's second issue
is sustained and its first issue is pretermitted.  See
Tex. R. App. P. 47.1.
Conclusion
            The
trial court's judgment is reversed and this cause is remanded for proceedings
consistent with this opinion.  
 
                                                                                    Patrick
A. Pirtle
                                                                                          Justice
 




[1]John T. Boyd, Chief Justice (Ret.),
Seventh Court of Appeals, sitting by assignment.  Tex. Gov=t Code Ann. ' 75.002(a)(1)
(West 2005).


[2]Originally appealed to the 2nd Court
of Appeals, this case was transferred to this Court by the Texas Supreme Court
pursuant to its docket equalization efforts. 
See Tex. Gov=t Code
Ann. ' 73.001 (West 2005).  We are unaware of any conflict between
precedent of the 2nd Court of Appeals and that of this Court on any
relevant issue.   See Tex. R. App. P. 41.3.


[3]An
inspection performed by the Commission on January 10, 2008, pursuant to an
administrative search warrant identified the following deficiencies in the
exterior:  the exterior walls exhibited
missing boards, roof was loose, faulty weather protection; roof with rotten
wood on the overhang and shingles that were deteriorated; foundation access
cover was missing; windows had broken glass, missing screens and rotting wood;
doors were missing, damaged, a poor fit and missing doorknobs; porches had lost
brick at the support post and a trip hazard; the electrical service had exposed
wiring, the steps were missing at the rear and side and large cracks in the
front steps.  An inspection of the
interior identified the following deficiencies: 
the electrical system had exposed wiring; a bathtub was missing and
damaged; faucets were missing; water heater, water closet, lavatory, and
kitchen sink were missing; mechanical system was missing a heat source;
interior walls were missing sheetrock; ceilings were missing boards and holes;
floors were missing boards, holes, unlevel and no impervious material on
bathroom floor; missing smoke detector; missing handrails for interior steps
and stairs; loose boards on interior stairs; and accumulation of combustible
materials in a vacant house.  


[4]"If no appeals are taken from
the decision of the commission panel within the required period, the decision
of the commission panel is, in all things, final and binding."  Tex. Loc. Gov't Code Ann. §
54.039 (West 2008).  Further,
"[a] hearing before the appeals board shall exhaust the administrative
remedies of the property owner . . . under this article."  Fort Worth, Tex., Minimum
Building Standards Code § 7-107(j) (2003).    


[5]See Tex. Const. art. I, § 19; U.S. Const. amend. XIV,
§ 1.  The due process clause in
our state constitution requires the same level of due process as the federal
constitution.  University of Texas Med. Sch. at Houston v. Than, 901 S.W.2d 926,
929 (Tex. 1995). 


[6]See Dunn v. Bank-Tec South, 134 S.W.3d 315, 321 (Tex.App.--Amarillo 2003, no pet.) (concluding trial court did not violate due process rights of
a party given inadequate notice of summary judgment hearing where party
attended and participated in summary judgment hearing).  


[7]See Balkum v. Tex. Dept. of Public Safety, 33 S.W.3d 263, 266-67 (Tex.App.--El Paso 2000, no pet.) (concluding litigant waived any complaint pertaining to Sixth
Amendment's right of confrontation when litigant did not raise the due process
issue in the administrative hearing). 


[8]See Walker v. Tex. Employers' Ins. Ass'n, 155 Tex. 617, 291 S.W.2d 298, 302
(1956) (jury presumed to have obeyed the trial court's instruction and disregarded
testimony); State v. Harrison, 97
S.W.3d 810, 817 (Tex.App.--Texarkana 2003, no pet.) (jury
presumed to have obeyed trial court's admonition limiting its consideration of
testimony).  


[9]See City of Corpus Christi, 51 S.W.3d at 262-63 (right to confrontation not denied
during administrative hearing where litigants "failed to explain what
evidence they would have adduced that is pertinent to a material disputed fact
issue had they been given more time to . . . present evidence, or cross-examine
witnesses").


