
                           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").



