Goffney v. HISD (Tex.App.- Houston [1st Dist.] Jul. 30, 2009)(Hanks)
(delinquent property tax suit, standing to appeal, preservation of error re: constitutional challenge, due
process challenge, inadequate briefing results in waiver of argument on appeal)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Hanks
Before Justices Keyes, Hanks and Bland
01-08-00063-CV Willie H. Goffney and Gladys R. Goffney v. Houston Independent School District
Appeal from 165th District Court of Harris County
Trial Court Judge: Hon. Elizabeth Ray
Trial Court Cause No. 2005-32574
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, Footnote delinquent ad valorem taxes, penalties, and
interest on five separate accounts.
We affirm.
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”). Footnote 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. Footnote
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. Footnote
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.” Footnote
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. Footnote
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. Footnote 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.
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. Footnote 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.
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. Footnote Therefore, the Goffneys did not preserve this issue for appeal. See id. Accordingly,
the Goffneys’ first issue is overruled.
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. Footnote 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. Footnote 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.
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
[14th Dist.] 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 [14th Dist.] 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. Footnote
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 [1st Dist.] 2006, no pet.);
Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex. App.—Houston [1st Dist.] 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 [1st Dist.] 2002,
no pet.)
IV. Conclusion
For the foregoing reasons, we overrule the Goffneys’ issues and affirm the trial court’s judgment.
George C. Hanks, Jr.
Justice
Panel consists of Justices Keyes, Hanks, and Bland.