Petition for Writ of Certiorari — Sisters of the Holy Family of Nazareth v. City of Grand Prairie

j veprenrme Vourt, U.S.

\

94 238 AUG - 8 199%

No, OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1994

+

SISTERS OF THE HOLY FAMILY OF

NAZARETH, A TEXAS CORPORATION,

Petitioner,

CITY OF GRAND PRAIRIE,

Respondent.

¢

Petition For A Writ Of Certiorari

To The Supreme Court Of Texas

*

PETITION FOR WRIT OF CERTIORARI

¢

Counsel for Petitioner

WINIKATES & WINIKATES

CHARLES J. WINIKATES

Counsel of Record

CuHartces J. WINIKATES, JR.

REGINA WINIKATES MENTESANA

Frances ANNE Fazio

Stewart Title Building

5728 L. B. J. Freeway

Suite 200

Dallas, Texas 75240

Telephone: (214) 386-0636

Fax: (214) 386-0639

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

This case presents the question of whether a city can

circumvent 42 U.S.C. 1983 and 42 U.S.C. 1988 by claiming

that a state statute offers similar relief, even though it

does not provide for the recovery of attorney’s fees by a

prevailing party.

This case also presents the question of whether Tex. Rev.

Civ. Stat. Ann. art. 1105b § 9 (Vernon Supp. 1987) pro-

vides an adequate postdeprivation remedy for a land-

owner who successfully challenges the constitutionality

of a lien which has been maintained by a municipality for

almost four years.

il

PARTIES TO THE PROCEEDING

The parties to the proceeding in the Supreme Court of

Texas are those listed in the caption:

Petitioner:

Sisters of the Holy Family of Nazareth,

A Texas Corporation

1814 Egyptian Way

P.O. Box 530959

Grand Prairie, Texas 75053-0959

Respondent:

City of Grand Prairie, Texas

P.O. Box 530011

Grand Prairie, Texas 75053-0011

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........--- 55-2 see sees: i

PARTIES TO THE PROCEEDING ............--+--- ii

TABLE OF CONTENTS..........--- eee eeeeeeeees iii

TABLE OF AUTHORITIES ................0eeee eee: iv

OPINIONS BELOW............:eccceccceeccrcceees 1

BASIS FOR JURISDICTION ...........--- 0002 eee ees 2

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED ......-.. 2

STATEMENT OF THE CASE............--+-00++05: 6

REASONS FOR GRANTING THE WRIT ......-.---. 7

CONCLUSION AND PRAYER FOR RELIEF ........ 23

iv

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Albright v. Oliver, 62 USLW 4078 (1994) ............. 12

Armstrong v. United States, 364 U.S. 40, 80 S.Ct.

| er errr rr rer Coy wey eye re ere 20

Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939

4 SR Pe rer pret: (rhs tyr r rip 21

City of Riverside v. Rivera, 477 U.S. 561, 106 S.Ct.

Es citi oe see VME kOe EARN ANE a eS 23

Federal Deposit Ins. Corp. v. City of New Iberia, 921

Fide Gee COs AOE; BPE is cake cbassceceven 17, 18, 19

Furey v. City of Sacramento, 780 F.2d 1448 (9th Cir.

| OPC PRR rere rs Tre rt er ee rr err ere ree 18

Mennonite Bd. of Missions v. Adams, 463 U.S. 791,

ge Ee ee a eres ren pert Seiya nee 19

McKesson v. Division of Alcoholic Beverages &

Tobacco, 496 U.S. 18, 110 S.Ct. 2238 (1990).......... 9

Mullane v. Central Hanover B. & T. Co., 339 U.S.

PO Oe ee Ce REPU is bk sok nde bs cewbaud basis 19

Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908 (1981)

Leake cee Sat dy eee kEAERO G0a Chk ee Cee 10, 11, 12

Village of Norwood v. Baker, 172 U.S. 269, 19 S.Ct.

gt Rarer te arr rene rarer pinning Seer Arner g rene arenes 8

Williams v. City of Fairburn, Georgia, 702 F.2d 973

bo Be Sr eo ore Pe err Ere eer Pree 22

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 192, 105 S.Ct. 3108

2, Pe eae LN reir y ter PRR rg ene ere 17, 18

Vv

TABLE OF AUTHORITIES —- Continued

Page

STATE CASES

City of Arlington v. Byrd, 713 S.W.2d 224 (Tex. App.

— Fort Worth 1986, writ ref’d n.r.e.), cert denied,

482 U.S. 929, 107 S.Ct. 3213 (1987)...........--6.- 13

City of Grand Prairie v. Sisters of the Holy Family of

Nazareth, 868 S.W.2d 835 (Tex.App. — Dallas

|.) eae operon renbary War rm rrr nt ea 8, 17, 19

City of Houston v. Blackbird, 394 S.W.2d 159 (Tex.

SGDE iv sca 0s dawns cae da Rede kakin veer ere ata es 8

Grace v. Structural Pest Control Board of Texas, 620

S.W.2d 157 (Tex. Civ. App. - Waco 1981, writ

OE REE AG ea Sin 5 ee ee 1508 16

Haynes v. City of Abilene, 659 S.W.2d 638 (Tex.

| ee PMNs Siero t Arr nro rir ey 8, 16

STATE STATUTE

Tex. Rev. Civ. Stat. Ann. art. 1105b § 9 (Vernon

Sapp. WG)... iss ces scenes debraeeuewnnen passim

FEDERAL STATUTES

CS Cee. ee NE oo a fy ce dek 0k eee eee Ree 2, %

aR a Re es rer rer Ter rT ey Tr 2, 8

y Bid? Se yD rere rer rrr er eri Tree TT het 2

Seb Tome Bs err rere rrr err rr rt ene 6, 35

BS I Fea Finn ca ne a tos Congdon eeee sens passim

PR ae eee Terre re rec rr rT. passim

a. ee ee =

ry

In The

Supreme Court of the United States

Oc er Term, 1994

¢

SISTERS OF THE HOLY FAMILY OF

NAZARETH, A TEXAS CORPORATION,

Petitioner,

CITY OF GRAND PRAIRIE,

Respondent.

¢

Petition For A Writ Of Certiorari

To The Supreme Court Of Texas

o

PETITION FOR WRIT OF CERTIORARI

%

Petitioner herein respectfully prays that a writ of

certiorari issue to the Supreme Court of Texas which, on

May 11, 1994, denied a Petition for writ of error to review

the judgment and opinion that the Court of Appeals for

the Fifth Judicial District of Texas at Dallas, Texas entered

in this action on October 21, 1993.

e |

OPINIONS BELOW

A final decision was reached, in an administrative

hearing, by the City Council of Grand Prairie, on June 14,

1988. The 134th Judicial District Court of Dallas County,

Texas reviewed the City Council’s decision, and entered a

final judgment in favor of Petitioner on April 27, 1992.

(Tr.Ct.No. 88-08122-G) The Court of Appeals for the Fifth

District of Texas at Dallas, Texas, affirmed the District

Court’s Judgment on July 27, 1993. (No. 05-92-01962-CV)

This Judgment was vacated, and a final Judgment on

Rehearing was entered by the Court of Appeals for the

Fifth District at Texas on October 21, 1993, which partially

affirmed, and partially reversed and rendered, the trial

court’s Judgment. This opinion is reported at 867 S.W.2d

835 (1993). The Texas Supreme Court denied Petitioner’s

Petition for Writ of Error on May 11, 1994. There was no

published opinion denying this Petition.

e

BASIS FOR JURISDICTION

This Court has jurisdiction to review this case pur-

suant to 28 U.S.C. § 1257.

+

CONSTI:UTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

United States Constitution, Amendment V:

No Person shall . . . be deprived of life, liberty,

or property, without due process of law .. .

United States Constitution, Amendment XIV:

. . . No state shall make or enforce any law

which shall abridge the privileges or immunities

of citizens of the United States; nor shal! any

State deprive any person of life, liberty, or prop-

erty, without due process of law .. .

42 U.S.C. § 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the

District of Columbia.

42 U.S.C. § 1988(b):

In any action or proceeding to enforce a provi-

sion of sections 1981, 1981la, 1982, 1983, 1985,

and 1986 of this title, title IX of Public Law

92-318, or title VI of the Civil Rights Act of 1964,

the court, in its discretion, may allow the pre-

vailing party, other than the United States, a

reasonable attorney’s fee as part of the costs.

Tex. Rev. Civ. Stat. Ann. art. 1105b § 9 (Vernon Supp.

1987):

Notice and hearing; contents of notice

Sec. 9. No assessment herein provided for

shall be made against any abutting property or

its owners, nor against any railway, street rail-

way or interurban, or owner, until after notice

and opportunity for hearing as herein provided,

and no assessment shall be made against any

abutting property or owners thereof in excess of

the special benefits of such property, and its

owners in the enhanced value thereof by means

of such improvements as determined at such

hearing. Such notice shall be by advertisement

inserted at least three (3) times in some news-

paper published in the city where such special

assessment tax is to be imposed, if there be such

a paper; if not, then the nearest to such city of

general circulation in the county in which such

city is located; . . . If any such notice shall

describe in general terms the nature of the

improvements for which assessments are pro-

posed to be levied and to which such notice

relates, shall state the highway, highways, por-

tion or portions thereof to be improved, shall

state the estimated amount or amounts per front

foot proposed to be assessed against the owner

or owners of abutting property and such prop-

erty on each highway or portion with reference

to which hearing mentioned in the notice is to

be held, and shall state the estimated total cost

of the improvements on each such highway, por-

tion or portions thereof, . . . Such hearing shall

be by and before the governing body of such

city and all owning any such abutting prop-

erty, .. . shall have the right, at such hearing, to

be heard on any matter as to which hearing is a

constitutional prerequisite to the validity of any

assessment authorized by this Act, and to con-

test the amounts of the proposed assessments,

the lien and liability thereof, the special benefits

to the abutting property and owners thereof by

means of the improvements for which assess-

ments are to be levied, the accuracy, sufficiency,

regularity and validity of the proceedings and

contract in connection with such improvements

and proposed assessments, and the governing

body shall have power to correct any errors,

inaccuracies, irregularities, and invalidities, and

to supply any deficiencies, and to determine the

amounts of assessments and all other matters

necessary, and by ordinance to close such hear-

ing and levy such assessments before, during or

after the construction of such improvements,

but no part of any assessment shall be made to

mature prior to acceptance by the city of the

improvements for which assessment is levied.

Anyone owning or claiming any property

assessed, or any interest therein, . . . who shall

desire to contest any such assessment on

account of the amount thereof, or any inac-

curacy, irregularity, invalidity, or insufficiency

of the proceedings or contract with reference

thereto, or with reference to such improvements,

or on account of any matter or thing not in the

discretion of the governing body, shall have the

right to appeal therefrom and from such hearing

by instituting suit for that purpose in any court

having jurisdiction, within fifteen (15) days

from the time such assessment is levied, and

anyone who shall fail to institute such suit

within such time shall be held to have waived

every matter which might have been taken

advantage of at such hearing, and shall be

barred and estopped from in any manner con-

testing or questioning such assessment, the

amount, accuracy, validity, regularity, and suffi-

ciency thereof, and of the proceedings and con-

tract with reference thereto and with reference

to such improvement for or on account of any

matter whatsoever... .

STATEMENT OF THE CASE

Petitioner, Sisters of the Holy Family of Nazareth, a

Texas Corporation (hereinafter referred to as “Land-

owner”) owns property that abuts Northwest 19th Street

in the City of Grand Prairie, Dallas County, Texas.

Respondent, City of Grand Prairie (hereinafter referred to

as “City”) levied a special assessment against this prop-

erty which represents a portion of the cost of improving

Northwest 19th Street. At the time of the assessment,

Landowner’s property was used for religious purposes as

a convent, retirement home, retreat center, chapel, and

cemetery complex.

Landowner filed the underlying lawsuit, pursuant to

Article 1105b of the Texas Revised Civil Statutes, the Fifth

Amendment of The United States Constitution, the Four-

teenth Amendment of the United States Constitution, 42

U.S.C. 1981-87, (especially 42 U.S.C. § 1983), and 42

U.S.C. § 1988, contesting the special assessment as being

imposed arbitrarily. The trial court found that the City

acted arbitrarily in enacting the ordinance that imposed

the assessment and lien, and declared that the assessment

and lien were unconstitutional because they were without

the support of substantial evidence that special benefits

were conferred on the property. The trial court found that

the City’s actions supported a claim under 42 U.S.C.

§ 1983 and awarded reasonable attorney’s fees under 42

U.S.C. § 1988. The Dallas Court of Appeals affirmed the

portion of the trial court’s judgment that declared that the

assessment was not based on substantial evidence, and

that the City’s assessment ordinance was unconstitutional

as a matter of law, and therefore invalid. The appellate

court, however, declined to find that the City’s actions

supported a claim under 42 U.S.C. § 1983 and reversed the

trial court’s award of reasonable attorney’s fees under 42

U.S.C. § 1988. Landowner filed a petition for writ of error in

the Supreme Court of Texas; on May 11, 1994, the Supreme

Court of Texas denied Landowner’s petition for writ of error.

The $37,270.00 assessment was imposed on June 14,

1988, and the trial occurred on April 21, 1992. The City

conducted a very vigorous defense (including removal to

federal court, which was later found to be improper, with the

case being remanded to state court). The amount of reason-

able and necessary attorney’s fees and costs for representa-

tion of the Landowner, up until the time of the trial, was

stipulated. At the end of the trial, the trial court took note of

the hours and hourly rates of counsel, and found that rea-

sonable attorney’s fees, and costs (through the trial) were

$63,768.00. There is no contention that the amount of attor-

ney’s fees was not reasonable and necessary.

Respondent has not challenged the Dallas Court of

Appeals’ Opinion on Rehearing, nor did it file a petition

for writ of error in the Supreme Court of Texas.

o

REASONS FOR GRANTING THE WRIT

This case presents the question of whether a city can

circumvent 42 U.S.C. § 1983 and 42 U.S.C. § 1988 by

claiming that a state statute offers similar relief, even

though it does not provide for the recovery of attorney's

fees by a prevailing party.

This case also presents the question of whether Tex.

Rev. Civ. Stat. Ann. art. 1105b § 9 (Vernon Supp. 1987)

provides an adequate postdeprivation remedy for a land-

owner who successfully challenges the constitutionality

of a lien which has been maintained by a municipality for

almost four years.

The Dallas Court of Appeals found that an assess-

ment imposed on a basis other than special benefits con-

ferred, or in an amount exceeding the special benefits,

constitutes a taking without just compensation in viola-

tion of the United States Constitution. City of Grand Prai-

rie v. Sisters of the Holy Family of Nazareth, 868 S.W.2d 835,

843 (Tex.App. — Dallas 1993), citing U.S. Const. amends.

V, XIV; Village of Norwood v.-Baker, 172 U.S. 269, 279, 19

S. Ct. 187, 190 (1898); Haynes v. City of Abilene, 659 S.W.2d

638, 641 (Tex. 1983); City of Houston v. Blackbird, 394

S.W.2d 159, 162 (Tex. 1965).

The Dallas Court of Appeals refused to recognize

that this Constitutional violation supports a civil rights

claim. The Dallas Court of Appeals reasoned that Tex.

Rev. Civ. Stat. Ann. art. 1105b § 9 (Vernon Supp. 1987)

provides for a suit to remove the lien as a function of the

1105b appellate process, and that such a suit constitutes

an adequate remedy under Texas law, and thereby pre-

cludes a 42 U.S.C. § 1983 cause of action, and an award of

attorney’s fees, under 42 U.S.C. § 1988.

The Court of Appeals erred when it held that a suit

under Tex. Rev. Civ. Stat. Ann. art. 1105b § 9 (Vernon

Supp. 1987) provides an adequate remedy to vindicate

the rights of a landowner who has had its constitutional

rights violated. Concurrent with the illegal assessment,

the City imposed a lien on Landowner’s property. Before

the imposition of the lien, Landowner had clear title to its

property. It took almost four years of litigation for a

district court to hold that the City’s actions were arbi-

trary. Throughout this entire time, the property was bur-

dened with the unconstitutional lien (Stipulations 35, 36,

59; App. 33 and 41). Tex. Rev. Civ. Stat. Ann. art. 1105b § 9

(Vernon Supp. 1987) does not, by itself, provide any type

of remedy for the deprivation during this time; nor does

it provide for the recovery of attorney’s fees by a success-

ful landowner.

The Dallas Court of Appeals relied heavily on

McKesson v. Division of Alcoholic Beverages & Tobacco, 496

U.S. 18, 110 S. Ct. 2238 (1990) for the proposition that if a

municipality offers a meaningful (emphasis added) oppor-

tunity for taxpayers to withhold contested tax assess-

ments and challenge their validity, no deprivation of

property without due process of law has occurred.

McKesson considered the question of “whether pro-

spective relief, by itself, exhausts the requirements of

federal law.” The Supreme Court of the United States

plainly held: “The answer is no: if a State places a tax-

payer under duress promptly to pay a tax when due and

relegates him to a post-payment refund action in which

he can challenge the tax’s legality, the Due Process Clause

of the Fourteenth Amendment obligates the State to pro-

vide meaningful backward-looking relief to rectify any

unconstitutional deprivation.” McKesson, 496 U.S. at 18.

It is disingenuous to say that this Landowner was

given the opportunity to withhold the contested assess-

ment during the litigation period. Although the City took

no money from the Landholder during this time, the City

did take away the right to clear title to the property, by

the imposition of the unconstitutional lien. In addition,

10

the City actively pursued its efforts to collect the assess-

ment by sending monthly statements to Landholder from

January 1990 through the month of the trial. The City also

hired a law firm to send a demand letter, by certified

mail, threatening a foreclosure suit, and suggesting that

the Landowner remit payment immediately to the City of

Grand Prairie (Stipulation 57; App. 40). Landowner was

not afforded a meaningful opportunity to contest the tax

assessment without having the unconstitutional lien

attach to its property.

The precedential effect of the Dallas Court of

Appeals’ Opinion (disallowing reasonable attorney’s

fees) is that in order to “afford” the “opportunity” for

due process, a landowner must be prepared to have an

unconstitutional lien imposed on its property during

lengthy litigation, and must also be able to pay reason-

able attorney’s fees in an amount that could be well in

excess of the illegal assessment. This system does not

offer a “meaningful opportunity” to contest an assess-

ment, and does not satisfy the due process requirements

of the Fifth and Fourteenth Amendments. Without the

intervention of the Supreme Court of the United States,

the Appellate Court’s Opinion effectively negates a land-

owner’s ability to have an illegal assessment ordinance

declared null and void, remove the cloud on its title to

the property, and otherwise enforce a landowner’s consti-

tutional rights.

In Parratt v. Taylor, 451 U.S. 527 (1981), the U.S.

Supreme Court held that an inmate of a state prison,

whose mail order hobby materials were lost when normal

procedure for receipt of mail packages was not followed,

did not have a 42 U.S.C. § 1983 cause of action against

11

prison officials to recover the value of such hobby mate-

rials. The Court, in a plurality opinion written by Justice

Rehnquist, took the position that 42 U.S.C. § 1983 should

not be used for every tort which is committed by a

governmental official, and would not be proper if a state

offered an adequate postdeprivation remedy. The plu-

rality opinion pointed out that the State of Nebraska had

statutes that provided a procedure for the state to hear

and pay claims of prisoners housed in its penal institu-

tions. The Court found that:

[t]he remedies provided could have fully com-

pensated the respondent for the property loss he

suffered,

and were as such sufficient to satisfy the requirements of

due process. See id. at 544. In a concurring opinion, Jus-

tice Stewart wrote:

To hold that this kind of loss [hobby materials

valued at $23.50] is a deprivation of property

within the meaning of the Fourteenth Amendment

seems not only to trivialize, but grossly distort the

meaning and intent of the Constitution.

See id. at 545.

In another concurring opinion, Justice Blackmun stated:

I continue to believe that there are certain gov-

ernmental actions that, even if undertaken with

a full panoply of procedural protection, are, in

and of themselves, antithetical to fundamental

notions of due process. . . . Most importantly, I

do not understand the Court to suggest that the

provision of ‘postdeprivation remedies,’ . . .

within a state system would cure the uncon-

stitutional nature of a state official’s intentional

act that deprives a person of property.

Id. at 545.

12

In yet another concurring opinion, Justice Powell wrote:

[u]nlike the Court, I do not believe that such

negligent acts by state officials constitute a

deprivation of property within the meaning of

the Fourteenth Amendment, regardless of what-

ever subsequent procedure a State may or may

not provide.

Id. at 546.

Finally, Justice Marshall, concurring in part and dis-

senting in part, wrote:

I part company with the majority, however, over

its conclusion that there was an adequate state-

law remedy available to respondent in this case.

Id. at 555.

As recently as last term, the members of the Supreme

Court of the United States have not been able to agree

about the application of Parratt v. Taylor. In Albright v.

Oliver, 62 USLW 4078 (1994), Justice Kennedy (joined by

Justice Thomas), wrote in a concurrence about the “clarity

of the Parratt rule: In the ordinary case where an injury

has been caused not by a state law, policy, or procedure,

but by a random and unauthorized act that can be

remedied by state law, there is no basis for intervention

under § 1983, at least in a suit based on ‘the Due Process

Clause of the Fourteenth Amendment simpliciter.’” In

the same case, Justice Stevens (joined by Justice Black-

mun) wrote in a dissent that “The Parratt doctrine is

reconcilable with § 1983 only when its application is

limited to situations in which no constitutional violation

occurs. In the context of certain deprivations of property,

due process is afforded - and therefore the Constitution

13

is not violated — if an adequate postdeprivation state

remedy is available in practice to provide either the prop-

erty’s prompt return or an equivalent compensation.”

The instant case offers The Supreme Court of the

United States an excellent opportunity to clarify what it

means by a meaningful opportunity to contest taxes, and

also give some guidelines regarding the adequacy of post-

deprivation state remedies. The Court should shed light

on when a civil rights action is not appropriate under

federal law; what constitutes an adequate remedy under

state law; and whether relief under state law, that comes

only after years of expensive litigation (and without the

possibility for the recovery of reasonable attorney's fees)

can be considered to be “adequate.”

The facts of this case are similar to those in City of

Arlington v. Byrd, 713 S.W.2d 224 (Tex. App. — Fort Worth

1986, writ ref’d n.r.e.), cert denied, 482 U.S. 929 (1987). In

both cases, a city enacted an ordinance that attempted to

impose paving assessments in amounts which were based

upon a benefit to accrue to property owners in the indefi-

nite future. Both the Court of Appeals of Dallas (in the

instant case), and the Court of Appeals of Fort Worth (in

the Byrd case), found that paving assessments, which are

based upon something other than substantial evidence of

a special benefit accruing to property within the immedi-

ate future, are unconstitutional.

In Byrd the Fort Worth Court of Appeals held that the

City of Arlington’s actions constituted a violation of 42

U.S.C. §§ 1981-87, and allowed attorney’s fees under 42

14

U.S.C. § 1988. That court further held that “[m]uni-

cipalites are ‘persons’ within the meaning of the stat-

ute, . . . and may be held liable for damages for

constitutional violations flowing from their legislative

activities, even in the absence of bad faith.” See id. at 228.

In footnote 3 of the Opinion on Rehearing, the Dallas

Court of Appeals attempted to distinguish the Byrd case

by stating that, “[i]n Byrd, appellants, claiming that a city

is not a proper defendant in a section 1983 cause of

action, did not contest the trial court’s conclusion of law

that the assessment liens amounted to an interference

with title to property and constituted a taking without

just compensation.” The cases should not be distin-

guished in this manner, as the City of Grand Prairie is

estopped from contesting that the assessment liens

amounted to an interference with title to the Land-

owner’s property. Prior to trial, the City stipulated that,

“the paving assessments constitute a statutory lien (inter-

ference) with Plaintiff's title to the property” (Stipulation

35; App. 33). The Dallas Court of Appeals ignored this

stipulation in its attempt to distinguish the Byrd case.

In the Opinion on Rehearing, the Dallas Court of

Appeals recognized that a Section 1983 cause of action is

appropriate in a special assessment case [in an article

1105b appeals hearing] if a plaintiff/landowner estab-

lishes that the City Council hearings, coupled with a

judicial review (applying the substantial evidence rule) is

not adequate to preserve the Landowner’s right to just

compensation and due process of law. The Court erred,

however, in holding that the facts of this case did not

support a section 1983 cause of action. The pre-assess-

ment hearing (before the city council) did not provide

en P

15

just compensation. A judicial review pursuant to article

1105b (but not coupled with a § 1983 cause of action)

would not provide just compensation — this statute does

not provide for the recovery of attorney’s fees by a suc-

cessful plaintiff/landowner.

THE HEARING BEFORE THE CITY COUNCIL

The hearing before the city council certainly did not

provide Landowner with just compensation, or due pro-

cess of law. In particular, the City reached a final decision

concerning the assessments, imposed a lien on the prop-

erty which encumbered title to it and which would con-

tinue until the City chose to release it, or until a final

judgment would be entered decreeing that the lien is

invalid. There was nothing more for the Sisters of the

Holy Family of Nazareth to do at the City Council level.

Part of the hearing before the City Council took place

in a closed door session, with the City Attorney advising

the Council that it could not change the assessment on

the property. This was erroneous advice, as Tex. Rev. Civ.

Stat. Ann. art. 1105b § 9 (Vernon Supp. 1987) states in

part: “ ... the governing body shall have the power to

correct any errors, inaccuracies, irregularities and

invalidities, and to supply any deficiencies and to deter-

mine the amounts of assessments and all other matters

necessary ... ”. The pre-assessment hearing did not

afford Landowner a meaningful opportunity to be heard

for the purpose of providing the City Council with a

reason for correcting errors which may have been con-

tained in the “enhancement study”. Although the trial

court did not award specific damages for these actions, it

16

did take them into consideration in finding a denial of

due process. Grace v. Structural Pest Control Board of Texas,

620 S.W.2d 157, 160 (Tex. Civ. App. — Waco 1981, writ

ref’d n.r.e.), discussed administrative hearings in general,

and held that “[i]n addition to substantial evidence to

support the action of an administrative agency, the pro-

ceedings of the agency must meet the requirements of

due process of law and the rudiments of fair play, in

order to be upheld . . . the hearing must not be arbitrary,

and must not be inherently unfair.”

THE JUDICIAL REVIEW

Pursuant to Tex. Rev. Civ. Stat. Ann. art. 1105b (Ver-

non Supp. 1987), in order to invalidate an unconstitu-

tional special assessment, a landowner must file a

lawsuit. This lawsuit is a review of the city council's

actions, not a step in the city’s determination of whether

it should impose an assessment. A court cannot substitute

its judgment for that of the City Council. The court can

only review the propriety of the council’s actions. In this

type of lawsuit, the citizen has an extremely heavy bur-

den to overcome in proving that the City Council’s

assessment was arbitrary. As the Supreme Court of Texas

pointed out in Haynes, 659 S.W.2d at 640, there is a strong

presumption in favor of validity of a municipal ordinance

and review of an ordinance by the court is governed by

the substantial evidence rule. Substantial evidence need

not be much evidence, but substantial evidence means

more than a scintilla.

17

Tex. Rev. Civ. Stat. Ann. art. 1105b (Vernon Supp.

1987) does not provide any remedy to a successful land-

owner, other than the eventual restoration of clear title to

the property.

CASES CITED BY THE DALLAS COURT OF

APPEALS DISTINGUISHED FROM CASE AT BAR

In its Opinion on Rehearing for the instant case,

Grand Prairie v. Sisters of Holy Family of Nazareth, a Texas

Corporation, 868 S.W.2d 835, 843 (Tex. App. — Dallas 1993),

the Dallas Court of Appeals misconstrued the holdings in

several cases. The Court cited Williamson County Regional

Planning Comm'n v. Hamilton Bank, 473 U.S. 192, 194 n.13

(1985) and Federal Deposit Ins. Corp. v. City of New Iberia,

921 F.2d 610, 615 (5th Cir. 1991) for the proposition that “a

specialized assessment, not based on special benefits,

does not automatically entitle a plaintiff-taxpayer to an

award of damages and attorney’s fees under a Section

1983 cause of action, alleging a violation of the Fifth and

Fourteenth Amendments.” That is not the holding in

either case.

In Williamson, the Supreme Court of the United States

examined the ripeness doctrine, and reaffirmed its posi-

tion that “a claim that the application of government

regulations effects a taking of a property interest is not

ripe until the government entity charged with imple-

menting the regulations has reached a final decision

regarding the application of the regulation to the prop-

erty at issue.” Williamson, 473 U.S. at 186. In examining

the issue of ripeness for judicial review, the Court found

that the respondent had not yet obtained a final decision

18

[from the planning commission] regarding how it would

be allowed to develop its property. Id. at 190.

In the instant case, ripeness is not an issue. Prior to

trial, the parties stipulated that; “everything necessary to

be done by the City for a statutory lien to attach has been

done.” (Stipulation 59; App. 41); “The paving assess-

ments constitute a statutory lien (interference) with Plain-

tiff’s title to the property” (Stipulation 35; App. 33); and

that “[s]uch lien will continue until the City of Grand

Prairie releases it, or until a final judgment by this Court

[i.e. the district court] is entered, decreeing that the lien

of the City is invalid” (Stipulation 36; App. 33). Land-

owner had completed the process with the governmental

entity (the City Council) which resulted in the imposition

of an unconstitutional lien on its property.

Federai Deposit Ins. Corp. v. City of New Iberia, 921 F.2d

610 (5th Cir. 1991) was a case in which a landowner

requested the city to construct a road which would spe-

cially benefit the landowner’s property. The landowner

subsequently defaulted, and the FDIC (as successor mort-

gagee) became the owner. Mortgagee did not have notice

of the special assessment hearings, and challenged the

constitutionality of the hearings on that basis (not on the

basis that there was no special benefit to the property). In

City of New Iberia at 616, the Fifth Circuit held that the

Fourteenth Amendment comprehends a challenge to a

special tax assessment only if it is so palpably punitive or

arbitrary as to confer no benefit on the landowner, (emphasis

added) or forces a landowner to make an improvement

that while valuable to others, is useless to him. (Citing

Furey v. City of Sacramento, 780 F.2d 1448, 1445.) City of

19

New Iberia found that there was no constitutional viola-

tion due to the facts of that case (mortgagee who did not

have notice of the assessment hearing), and did not

address the issue of attorney’s fees.

The case at bar can be distinguished from City of New

Iberia in that the challenge to the special assessment was

on the basis of the assessment being arbitrary. In the

instant case, both the trial and appellate courts agree that

the special assessment was arbitrary and conferred no

benefit on the Landowner. No evidence was presented to

the council, nor to the trial court, that would indicate any

special benefit conferred on the Landowner. In fact, as the

Appellate Court pointed out in its Opinion on Rehearing,

“the only testimony regarding the assessments as they

relate to Sisters’ property negates the validity of the

assessment ordinance.” City of Grand Prairie v. Sisters of

the Holy Family of Nazareth, 868 S.W.2d 835, 840 (Tex.App.

— Dallas 1993).

The Appellate Court cited Mennonite Bd. of Missions v.

Adams, 463 U.S. 791 (1983), and Mullane v. Central Hanover

B. & T. Co., 339 U.S. 306, 313-14 (1950) for the proposition

that “the date on which a taking or deprivation of prop-

erty must be measured is the date on which govern-

mental action “immediately and drastically diminishes

the value of the [property owner’s] interest.” These cases

are concerned with the question of when notice by pub-

lication is proper, and do not discuss the issue of whether

or not a lien imposed upon a landowner’s property by a

governmental entity constitutes a taking or deprivation of

property.

20

CONSTITUTIONAL CLAIMS UNDER

42 U.S.C. §§ 1983 AND 1988

42 U.S.C. § 1983 states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the

District of Columbia.

The City’s ordinance, (which imposed the assessment

arbitrarily — without the support of substantial evidence

that special benefits were conferred on the property),

deprived Landowner of the right to clear title to the

property. A lien is a property interest with a value. Arm-

strong v. United States, 364 U.S. 40 (1960). The stipulations

state that the paving assessments constitute a statutory

lien (interference) with [Landowner’s] title to the prop-

erty, and that such lien will continue until the City of

Grand Prairie releases it, or until a final judgment invali-

dates the lien. (Stipulations 5, 14, 35 and 36; App. 30, 31

Pom te seer

21

and 33. A reasonable inference would be that the “dimi-

nution of economic value” would be equal to the amount

of the lien. Sisters of the Holy Family of Nazareth had to

bring a suit in equity for proper redress to vindicate the

constitutional deprivation of its rights.

Although Landowner did not seek monetary dam-

ages under 42 U.S.C. § 1983, it sought the removal of the

lien, and the invalidation of the unconstitutional assess-

ment ordinance. Landowner also asked for attorney’s fees

under section 42 U.S.C. § 1988. The scope of 42 U.S.C.

§ 1983 is broad, and includes “suits in equity, or other

proper proceedings for redress.” 42 U.S.C. § 1983 is not

limited to suits for monetary damages.

In Blanchard v. Bergeron, 489 U.S. 87, 95-96 (1989), the

Supreme Court stated:

It is clear that Congress intended that the

amount of fees awarded . . . be governed by the

same standards which prevail in other types of

equally complex Federal litigation . . . and not

be reduced because the rights involved may be non-

pecuniary in nature. . . . Section 1988 makes no

distinction between actions for damages and

suits for equitable relief. Congress has elected to

encourage meritorious civil rights claims

because of the benefits of such litigation for the

named plaintiff and for society at large, irre-

spective of whether the action seeks monetary

damages. (emphasis added)

22

42 U.S.C. § 1988(b) states:

In any action or proceeding to enforce a provi-

sion of sections 1981, 1981la, 1982, 1983, 1985,

and 1986 of this title, title IX of Public Law

92-318, or title VI of the Civil Rights Act of 1964,

the court, in its discretion, may allow the pre-

vailing party, other than the United States, a

reasonable attorney’s fee as part of the costs.

In denying attorney’s fees to Landowner, the Dallas

Court of Appeals took a very narrow view of civil rights

litigation. “The statutory awarding of attorney’s fees

should be accorded broad interpretation since the statute

is remedial in nature. . . . The basis for allowing such

broad interpretations is to facilitate private enforcement

and to allow the attorney to explore and develop every

aspect of a case.” Williams v. City of Fairburn, Georgia, 702

F.2d 973, 976 (11th Cir. 1983).

As the power and authority of municipal govern-

ments over citizens grows, so does the temptation to treat

them unfairly. “Arbitrary, capricious, and unreasonable”

are words that describe such conduct, and “deprivation

of constitutional rights” is a phrase that is used. 42 U.S.C.

§ 1983 et seq. were enacted to give citizens the oppor-

tunity to correct governmental misconduct. Attorney’s

fees, provided by Section 1988 (in particular) are neces-

sary to breathe life into the patriotic words of Section

1983. Many constitutional violations would go

unchallenged if the victims had to pay reasonable attor-

ney’s fees in order to gain redress.

23

This Court discussed the nature of attorney’s fees in

civil rights cases in City of Riverside v. Rivera, 477 U.S. 561

(1986). This Court recognized that the nature of civil

rights violations “frequently involve substantial expendi-

tures of time and effort but produce only small monetary

recoveries.” Riverside, 477 U.S. at 577. This Court held

that it would be improper to limit the amount of the fee

recovered to a proportionate amount of a monetary

recovery:

A rule of proportionality would make it

difficult, if not impossible, for individuals with

meritorious civil rights claims but relatively

small potential damages to obtain redress from

the courts. This is totally inconsistent with Con-

gress’ purpose in enacting § 1988. Congress rec-

ognized that private-sector fee arrangements

were inadequate to ensure sufficiently vigorous

enforcement of civil rights. In order to ensure

that lawyers would be willing to represent per-

sons with legitimate civil rights grievances,

Congress determined that it would be necessary

to compensate lawyers for all time reasonably

expended on a case. Riverside, 477 U.S. at 578.

¢

CONCLUSION AND PRAYER FOR RELIEF

Petitioner, Sisters of the Holy Family of Nazareth, a

Texas Corporation, respectfully prays that this Court:

grant this application for writ of certiorari, reverse the

holding of the Appellate Court insofar as it does not

allow Petitioner to recover its attorney’s fees, affirm the

decision of the trial court below, remand the case so that

the trial court may award additional attorney’s fees for

24

presenting this case to this Court, and grant such other

and further relief to which Petitioner may be entitled.

Respectfully submitted,

Counsel for Petitioner

Winikates & WINIKATES

CHar-es J. WINIKATES

Counsel of Record

CHar-Les J. WINIKATES, JR.

REGINA WINIKATES MENTESANA

FRANCES ANNE Fazio

Stewart Title Building

5728 L. B. J. Freeway

Suite 200

Dallas, Texas 75240

Telephone: (214) 386-0636

Fax: (214) 386-0639

App. 1

APPENDIX

THE SUPREME COURT OF TEXAS

P. O. Box 12248

Supreme Court Building

Austin, Texas 78711

John T. Adams, Clerk

May 11, 1994

Mr. Charles J. Winikates Mr. Charles J. Winikates, Jr.

Winikates & Winikates Winikates & Winikates

5728 LBJ Freeway 5728 LBJ Freeway

Suite 200 Suite 200

Dallas, TX 75240 Dallas, TX 75240

Mr. W. Alan Wright Ms. Margaret M. McLeod

Haynes & Boone Haynes & Boone

3100 NationsBank Plaza 3100 NationsBank Plaza

901 Main Street 901 Main Street

Dallas, TX 75202-3789 Dallas, TX 75202-3789

Mr. Paul C. Isham Ms. Michelle E. McCoy

City of Grand Prairie, Haynes & Boone

Texas 3100 NationsBank Plaza

Office of the City 901 Main Street

Attorney Dallas, TX 75202-3714

P. O. Box 530011

Grand Prairie, TX

75053-0011

RE: Case No. 94-0104

Style: SISTERS OF THE HOLY FAMILY OF NAZARETH,

A TEXAS CORPORATION v. CITY OF GRAND PRAIRIE

App. 2

Dear Counsel:

Today, the Supreme Court of Texas denied the above

referenced application for writ or error with the notation

“Writ Denied”.

Sincerely,

John T. Adams, Clerk

by /s/ Gene Burns

Gene Burns, Deputy

IN THE SUPREME COURT OF TEXAS

NO. 94-0104

SISTERS OF THE HOLY

FAMILY OF NAZARETH,

A TEXAS CORPORATION

From DALLAS County,

5th District.

05-92-01962-CV

me eee eee ee ee ee”

v.

(Filed

CITY OF GRAND July 11, 1994)

PRAIRIE

Application of petitioner for writ of error to the

Court of Appeals for the Fifth District having been duly

considered, and the Court having determined that the

application presents no error of law which is of such

importance to the jurisprudence of the State as to require

correction, or reversal of the judgment of the Court of

Appeals, it is ordered that said application be, and hereby

is, denied.

It is further ordered that applicant, Sisters of the

Holy Family Of Nazareth, a Texas Corporation, pay all

costs incurred on this application.

* * +

App. 3

I, JOHN T. ADAMS, Clerk of the Supreme Court of

Texas, do hereby certify that the above and foregoing is a

true and correct copy of the order of the Supreme Court

of Texas in the case numbered and styled as above, as the

same appears of record in the minutes of said Court

under the date shown.

WITNESS my hand and seal of the Supreme Court of

Texas, at the City of Austin, this, the 13th day of June,

1994.

John T. Adams, Clerk

by /s/ Gene Burns

Courtland Crocker

Deputy

App. 4

(SEAL)

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

CITY OF GRAND Appeal from the 134th

PRAIRIE, Appellant Judicial District Court

No. 05-92-01962-CV V of Dallas County, Texas.

(Tr.Ct.No. 88-08122-G).

SISTERS OF THE HOLY Sal: :

FAMILY OF NAZARETH, Opinion delivered by

A TEXAS CORPORATION Justice Rosenberg, Justices

Appellee ‘ Kinkeade and Maloney

participating.

This Court’s judgment of July 27, 1993 is VACATED.

The following is now our judgment.

In accordance with this Court’s opinion of this date,

we AFFIRM that part of the trial court’s judgment that

renders the City of Grand Prairie’s Ordinances Nos. 4348,

4362, and 4620 null and void, without force or effect, in so

far as they apply to Sisters of The Holy Family of

Nazareth, a Texas Corporation.

We REVERSE that part of the trial court’s judgment

that awards attorney’s fees to Sisters of The Holy Family

of Nazareth, a Texas Corporation, and RENDER that Sis-

ters of the Holy Family of Nazareth, a Texas Corporation,

take nothing on its claim for attorney’s fees.

We AFFIRM the trial court’s judgment in all other

respects.

App. 5

It is ORDERED that appellant, City of Grand Prairie,

and appellee, Sisters of the Holy Family of Nazareth, a

Texas Corporation, each bear its own costs of this appeal.

Judgment entered October 21, 1993.

/s/ Barbara E. Rosenberg

BARBARA E. ROSENBERG

sUSTICE

App. 6

CITY OF GRAND PRAIRIE, Appellant,

v.

SISTERS OF the HOLY FAMILY OF

NAZARETH, A Texas Corporation,

Appellee.

No. 05-92-01962-CV.

Court of Appeals of Texas,

Dallas.

Oct. 21, 1993.

Rehearing Denied Dec. 28, 1993.

Taxpayer brought suit against city contending that

city’s ordinance levying assessments on taxpayer’s prop-

erty was void. The 134th District Court, Dallas County,

Anne Packer, J., invalidated assessment ordinance and

awarded taxpayer attorneys fees for city’s violation of

taxpayer’s federal constitutional rights. City appealed.

The Court of Appeals, Rosenberg, J., held that: (1) city’s

assessment ordinance was invalid because taxpayer’s

property would not be benefitted in amount equal to or

greater than amount of assessment; (2) taxpayer did not

suffer constitutional injury compensable under § 1983 in

absence of showing unconstitutional taking; and (3) tax-

payer was not entitled to recover attorney fees under

Texas law or under § 1988.

Affirmed in part, reversed and remanded in part.

R. Clayton Hutchins, Grand Prairie, Alan Wright,

Margaret M. McLeod, Dallas, for appellant.

Charles J. Winns Rates Jr., Dallas, for appellee.

Before KINKEADE, MALONEY and ROSENBERG, JJ.

App. 7

OPINION ON REHEARING

ROSENBERG, Justice.

We grant City of Grand Prairie’s motion for rehear-

ing. We withdraw our opinion of July 27, 1993 and vacate

the judgment of that date. The following is now the

Court’s opinion.

Sisters of the Holy Family of Nazareth (Sisters)

brought suit against the City of Grand Prairie (City)

contending that the City’s ordinance! levying assess-

ments on Sisters’s property was void. The trial court

invalidated the assessment ordinance and awarded Sis-

ters its attorney’s fees for the City’s violation of Sisters’s

federal constitutional rights. In thirteen points of error,

the City complains generally that the trial court erred in

entering judgment for Sisters because (1) the City’s

assessment ordinance was supported by substantial evi-

dence of special benefits, and (2) the City’s public hear-

ings were held in compliance with all constitutional and

statutory requirements.

We conclude that the City’s assessment ordinance

was not supported by substantial evidence. Conse-

quently, the trial court did not err in rendering the assess-

ment ordinance null and void. The trial court erred,

however, in awarding attorney’s fees based on a finding

of federal constitutional violations by the City. Accord-

ingly, we reverse the trial court’s award of attorney’s fees

' References to the City’s assessment ordinance refers to

the City of Grand Prairie’s Ordinances Nos. 4348, 4362, and

4620, which order the paving improvements and assess special

taxes against Sisters and its property.

App. 8

and render that Sisters take nothing on its claim for

attorney’s fees. We affirm the trial court’s judgment in all

other respects.

FACTUAL AND PROCEDURAL

BACKGROUND

Sisters is a religious organization that owns property

abutting Northwest 19th Street in Grand Prairie, Texas.

The organization uses this property as a convent, retire-

ment home, retreat center, chapel, and cemetery complex.

In 1988, the City voted to levy assessments to cover a

portion of the cost of improving Northwest 19th Street.

The City hired an appraisal expert to conduct an

enhancement study. The purpose of the enhancement

study was to determine the value of benefits that would

accrue to the twenty-five abutting property owners and

the amount of money the City should assess against each

owner.

The Grand Prairie City Council (City Council) held a

public hearing on the proposed assessments. Sisters

attended the hearing and announced that the proposed

street improvements would not enhance its property

because the property did not have direct access to North-

west 19th Street and the increased traffic flow would be

detrimental to the property’s current uses. The City

Council postponed action on the matter until its staff

could research the questions raised about the proposed

assessments.

The City considered the matter again at the public

hearing the next week. Sisters restated its opposition to

the assessment. Following Sisters’s objections, the council

App. 9

members convened in a closed-door executive session to

consult with the city attorney. Immediately upon the

council members’ return, the City Council voted to levy

the assessments in Ordinance 4362. Sisters made a final

objection asserting that the amount of the proposed

assessment against its property was unreasonable and

arbitrary. Sisters argued that the proposed street

improvements would not confer special benefits on its

property in an amount equal to the assessment. The coun-

cil members responded that after consulting with the city

attorney, the City Council found the appraisals to be fair

and valid. Sisters was assessed $37,270 while many adja-

cent property owners were not assessed at all.

Sisters brought suit against the City and filed a

motion for partial summary judgment. The trial court

granted Sisters’s motion stating “there was no substantial

evidence that the subject property received a special ben-

efit equal to, or in excess of the amount assessed.” At the

trial on the remaining issues, the City asked the trial

court to reconsider its earlier ruling on Sisters’s motion

for partial summary judgment. Sisters did not object to

the City’s request, and the trial court agreed to reconsider

its earlier ruling.

After reviewing the evidence and hearing the argu-

ments of both parties, the trial court entered judgment in

favor of Sisters. In support of its judgment, the trial court

made findings of fact that there was no evidence of

special benefits accruing to Sister’s property in an

amount equal to or in excess of the assessment. The trial

court concluded that the City acted arbitrarily in levying

the assessment. The trial court further concluded that the

assessment constituted an interference with Sister’s title

App. 10

to the property and violated Sister’s constitutional rights.

The trial court further concluded that the City’s actions

constituted violations of the Fifth Amendment, the Four-

teenth Amendment, and sections 1981-1988 of Title 42 of

the United States Code. Finding federal constitutional

violations, the trial court awarded $63,768 in attorney’s

fees to Sisters as a party who prevailed in a constitutional

claim under section 1983.

VALIDITY OF THE ASSESSMENT

ORDINANCE

—In its third point of error, the City contends that the

trial court erred in entering judgment for Sisters because

the assessment ordinance was supported by substantial

evidence of a special benefit.

Article 1105b of the Texas Revised Civil Statutes con-

trols the City’s ability to impose paving assessments on

its citizens. See Tex.Rev.Crv.Stat.ANn. art. 1105b (Vernon

Supp.1993). Section 9 of this article prohibits the City

from assessing property owners in an amount in excess of

the special benefits conferred on their property by the

paving improvements. See Tex.Rev.Civ.Stat.ANN. art.

1105b (Vernon Supp.1993); Haynes v. City of Abilene, 659

S.W.2d 638, 641 (Tex.1983).

There is a strong presumption in favor of the validity

of the City’s legislative action. The burden of proof is on

the party seeking to invalidate it. Haynes, 659 S.W.2d at

640. This Court has no authority to invalidate the City’s

ordinance unless the assessment is arbitrary or the result

of fraud. City of Houston v. Blackbird, 394 S.W.2d 159, 163

(Tex.1965); Cook v. City of Addison, 656 S.W.2d 650, 658

App. 11

(Tex.App. — Dallas 1983, writ ref’d n.r.e.). This inquiry

presents a question of law for the Court. Blackbird, 394

S.W.2d at 163.

The substantial evidence rule governs our review of

whether the City acted arbitrarily or fraudulently. Haynes,

659 S.W.2d at 640. We must affirm the action of the City

Council if the assessment is supported by substantial

evidence of a special benefit. Id. at 640-41. The Texas

Supreme Court has defined a special benefit as an enhan-

cement more localized in nature than the general

improvement received throughout the community, but

not necessarily unique to a given piece of property. Id. at

641-42. There is no presumption of a special benefit that

arises simply by virtue of the improvement of a city

street. Id. at 642. In some instances, street improvements

may actually decrease the value of residential property.

Id.

At trial, Sisters argued that the City’s assessment

ordinance was invalid because it was not supported by

substantial evidence showing that its property would be

benefitted in an amount equal to or greater than the

amount of the assessment. Sisters introduced into evi-

dence the minutes from the City Council’s public hear-

ings. The minutes reveal that no testimony was given in

support of the assessment ordinance. In fact, the only

testimony regarding the assessments as they relate to

Sisters’s property negates the validity of the assessment

ordinance.

Sisters also introduced into evidence the documents

reviewed by the City Council in making its decision to

adopt the assessment ordinance. These documents show

App. 12

that each council member received the proposed assess-

ment ordinances and an assessment roll prepared in

reliance of the City’s enhancement study. The council

members did not receive a copy of the enhancement

study itself. The City relies exclusively upon the informa-

tion contained in the enhancement study to supply the

substantial evidence supporting the City Council’s deci-

sion.

The enhancement study showed that the twenty-five

abutting properties were individually analyzed using a

land-only basis for determining enhancement value. No

attempt was made to value the improvements on the

land. The study concluded that the special benefits

derived by Sister’s property, as well as by nine of the

other abutting properties, included a widened and paved

street, newly constructed curbs and gutters, divided

median strips, underground storm drainage, driveway

approaches, and improved ingress, egress, and overall

access. Without explanation, the study indicated that the

other fifteen abutting properties did not receive any ben-

efits from the street improvements.

James Wesley Cullar, the City’s expert appraiser, tes-

tified at trial that his firm evaluated Sisters’s property on

a land-only basis without taking into consideration any

improvements on the property. Using this method of

valuation, Cullar explained that if Sister’s property was

vacant, its highest and best use would be the eventual

subdivision into single-family residential housing. Cullar

determined that as residential realty, Sisters’s property

would receive the benefits of improved drainage, better

access, and increased traffic flow. In other words, the

App. 13

benefit to Sisters’s land was based on future develop-

ment. Cullar was unable to state when, if ever, residential

development would occur on Sisters’s property.

We determine that a close examination of the enhan-

cement study demonstrates that the City used a method

of evaluating Sisters’s property that was too remote in

time and too speculative to warrant consideration in

determining the enhancement values attributable to the

street improvements. See City of Austin v. Cannizzo, 153

Tex. 324, 267 S.W.2d 808, 814 (1954) (asserting that to

admit evidence of the value of land based on a use other

than its present use, a party must show that the other use

is reasonably probable within the immediate future or

within a reasonable time); see also Page v. City of Lockhart,

397 S.W.2d 113, 119-20 (Tex.Civ.App. - Austin 1965, no

writ) (applying reasoning in Cannizzo to determine

admissibility of evidence of land values in assessment

case). Speculation about special benefits that will accrue

in the indefinite future does not constitute substantial

evidence to support an assessment ordinance. City of

Arlington v. Byrd, 713 S.W.2d 224, 228 (Tex.App. — Fort

Worth 1986, writ ref’d n.r.e.), cert. denied, 482 U.S. 929, 107

S.Ct. 3213, 96 L.Ed.2d 700 (1987).

After considering the study as a whole, as well as the

other evidence in the record, we conclude that the record

does not contain substantial evidence to reasonably sus-

tain the City Council’s finding that the street improve-

ments would enhance the value of Sisters’s property in a

sum equal to the amount assessed. Therefore, the trial

court did not err in invalidating the City’s assessment

ordinance. We overrule the City’s third point of error.

App. 14

In its first two points of error, the City contends that

the trial court improperly placed the burden of proving

the assessment ordinance’s validity on the City. The City

argues that because the trial court required the City to

present evidence supporting the assessment, Sisters was

erroneously relieved of its burden of proof.

It is undisputed that Sisters had the burden of pro-

ving that the City Council’s assessment was arbitrary. See

Haynes, 659 S.W.2d at 640. The trial court acknowledged

Sisters’s burden by stating in its conclusions of law:

“There is a strong presumption in favor of validity of a

municipal ordinance and review of an ordinance by the

court is governed by the substantial evidence rule. Sub-

stantial evidence need not be much evidence, but sub-

stantial evidence means more than a scintilla.”

At trial, Sisters introduced into evidence the parties’

stipulated facts, the minutes from the public hearings, the

documents received by the council members, and the

testimony of the City’s expert appraiser. Sisters asserted

that these documents did not contain substantial evi-

dence of a special benefit. After Sisters established its

prima facie case, the City tendered the enhancement

study to refute Sisters’s contentions. The City did not

produce further evidence of the existence of a special

benefit. We have already determined that the enhance-

ment study did not constitute substantial evidence sup-

porting the assessment ordinance. We hold that Sisters

successfully carried its burden of production and persua-

sion by demonstrating that the assessment was arbitrary.

See Simpson v. Home Petroleum Corp., 770 F.2d 499, 503 (5th

Cir.1985). We conclude that the trial court did not place

App. 15

the burden of proof on the City. We overrule the City’s

first and second points of error.

THE TEXAS OPEN MEETINGS

ACT AND ARTICLE 1105b

In its fourth, fifth, and sixth points of error, the City

contends that the trial court erred in concluding that the

City Council’s closed-door executive session violated sec-

tion 2(e) of article 6252-17 and section 9 of article 1105b of

the Texas Revised Civil Statutes. See Tex.Rev.Civ.stat.ANN.

arts. 6252-17, 1105b (Vernon Supp. 1993).

At oral argument, the City conceded that the issues

raised in these points of error are not necessary to the

disposition of this appeal because the trial court did not

grant affirmative relief for violations of these statutes.

Therefore, we need not address the City’s fourth, fifth,

and sixth points of error. See Tex.R.App.P. 90(a).

TEXAS CONSTITUTION

In point of error nine, the city contends that the trial!

court erred in concluding that the City’s paving assess-

ment ordinance constituted a taking without just compen-

sation under the Texas Constitution. Tex.Const. art I, § 17.

Sisters, however, did not seek compensation for inju-

ries suffered under the takings clause of the Texas Consti-

tution nor did the trial court grant affirmative relief

based on such a violation. A determination of whether

the City’s assessment ordinance, rendered null and void

by the trial court, constituted a taking without just com-

pensation in violation of the Texas Constitution is not

App. 16

necessary to the disposition of this appeal. Accordingly,

we do not address the City’s ninth point of error. See

Tex.R.App.P. 90(a).

UNITED STATES CONSTITUTION

The City’s next four points of error concern the trial

court’s conclusion that the City’s action in levying an arbi-

trary special tax assessment against Sisters’s property

resulted in a taking, thereby violating Sisters’s federal rights

secured by the Due Process Clauses of the Fifth and Four-

teenth Amendments to the United States Constitution.

1. Parties’ Contentions

The City urges that the requirements of article 1105b

of the Texas Revised Civil Statutes, which include public

hearings coupled with appellate review, satisfy the com-

mands of the United States Constitution. The City asserts

that the trial court represents an integral part of the

special tax assessment process, which is designed to

insure that an improper tax is not levied. Further, argues

the City, article 1105b provides judicial review to protect

against a “taking by governmental action” or a “depriva-

tion of property without due process of law.” Conse-

quently, the property owner — successful at the trial court

level — has not suffered a “taking” or “deprivation of

property” that would constitute a constitutional injury

compensable in a section 1983 cause of action.?

2 42 U.S.C.A. § 1983 (West Supp. 1993). Further references

to sections shall be to Title 42 of the United States Code, unless

otherwise indicated.

VEE CERO

App. 17

According to Sisters, the trial court’s role is to deter-

mine if the City provided its citizens with appropriate

substantive and procedural due process. If the trial court

finds that the City acted arbitrarily, the trial court not

only has the authority to invalidate the assessment and

resulting lien, but also has the authority to find a consti-

tutional injury under the United States Constitution and

award damages and attorney’s fees pursuant to section

1983 and 1988 of the U.S.Code. See Byrd, 713 S.W.2d at

228.3 Sisters further contends that a “taking” occurred

the moment the City assessed a tax in an amount greater

than special benefits and imposed a tax lien on its prop-

erty.

2. Applicable Law

As an abstract principle of law, any individualized

assessment imposed on a basis other than special benefits

conferred or in an amount exceeding the special benefits

constitutes a taking of private property without just com-

pensation in violation of the United States Constitution.

U.S. Const. amends, V, XIV; Norwood v. Baker, 172 U.S. 269,

279, 19 S.Ct. 187, 190, 43 L.Ed. 443 (1898); Haynes, 659

S.W.2d at 641; Blackbird, 394 S.W.2d at 162.

3 In Byrd, appellants, claiming that a city is not a proper

defendant in a section 1983 cause of action, did not contest the

trial court’s conclusion of law that the assessment liens

amounted to an interference with title to property and constitu-

ted a taking without just compensation. The court of appeals

held that a city is a proper section 1983 defendant and the trial

court had the authority to award attorney’s fees to appellees.

713 S.W.2d at 229.

App. 18

However, a specialized assessment, not based on spe-

cial benefits, does not automatically entitle a plaintiff-

taxpayer to an award of damages and attorney’s fees

under a section 1983 cause of action, alleging a violation

of the Fifth and Fourteenth Amendments. See Williamson

County Regional Planning Comm'n v. Hamilton Bank, 473

U.S. 172, 194 n. 13, 105 S.Ct. 3108, 3120 n. 13, 87 L.Ed.2d

126 (1985); Federal . posit Ins. Corp. v. City of New Iberia,

921 F.2d 610, 615 (5th Cir.1991). Although a specialized

assessment may be greater than the benefits conferred

and thereby violate the Fifth and Fourteenth Amend-

ments, the unconstitutional assessment may not consti-

tute a compensable injury under section 1983.

To determine whether Sisters suffered a “taking with-

out just compensation” or “deprivation of property with-

cut due process of law,” we must determine whether a

pre-assessment hearing coupled with judicial review

applying the substantial evidence rule satisfies the due

process requirements of the Fifth and Fourteenth Amend-

ments. See U.S. Const. amends. V, XIV.

A special tax assessment in excess of benefits con-

ferred will not contravene the Fifth and Fourteenth

Amendments, thereby creating a compensable injury

under section 1983, unless (1) the assessment is collected,

and (2) the assessment amounts to such an abuse as to be

an outright confiscation of property or taking without

just compensation. See Williamson, 473 U.S. at 194 n. 13,

105 S.Ct. at 3120 n. 13; Federal Deposit Ins. Corp., 921 F.2d

at 615 (citing French v. Barber Asphalt Paving Co., 181 U.S.

324, 21 S.Ct. 625, 45 L.Ed. 879 (1901); Wight v. Davidson,

181 U.S. 371, 21 S.Ct. 616, 45 L.Ed. 900 (1901); City of

Detroit v. Parker, 181 U.S. 399, 21 S.Ct. 624, 45 L.Ed. 917

App. 19

(1901)). To begin our inquiry, we first consider the due

process requirements of the Fifth and Fourteenth Amend-

ments.

a. Fourteenth Amendment

A Fourteenth Amendment “takings” challenge to a

special tax assessment occurs if the tax collected is so

palpably punitive or arbitrary as to confer no benefit on

the landowner or “force[s] a landowner to make an

improvement that, while valuable to others, is useless to

him.” See Federal Deposit Ins. Corp., 921 F.2d at 615 (citing

Furey v. City of Sacramento, 780 F.2d 1448, 1454 (9th Cir.

1986)).

Because collection of a tax constitutes a deprivation

of property, the government must also provide pro-

cedural safeguards against unlawful exactions to satisfy

the commands of the Due Process Clause. To satisfy due

process requirements,

the State must provide taxpayers with, not only

a fair opportunity to challenge the accuracy and

legal validity of their tax obligation, but also a

clear and certain remedy for any erroneous or

4 Due process generally requires three factors to be consid-

ered: (1) the private interest that will be affected by the official

action; (2) the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of

additional or substitute safeguards; and (3) the government's

interest, including the function involved and the fiscal and the

administrative burdens that the additional or substantive pro-

cedural requirement would entail. Mathews v. Eldridge, 424 U.S.

319, 334-35, 96 S.Ct. 893, 903-904, 47 L.Ed.2d 18 (1976).

App. 20

unlawful tax collection to ensure that the oppor-

tunity to contest the tax is a meaningful one.

McKesson v. Division of Alcoholic Beverages & Tobacco, 496

U.S. 18, 39, 110 S.Ct. 2238, 2250, 110 L.Ed.2d 17 (1990)

(footnotes and citations omitted). “The fundamental

requirement of due process is the opportunity to be heard

‘at a meaningful time and in a meaningful manner.’ ”

Mathews, 424 U.S. at 333, 96 S.Ct. at 902 (emphasis added

' and citations omitted).

If a municipality offers a meaningful opportunity for

taxpayers to withhold contested tax assessments and

challenge their validity, no deprivation of property with-

out due process of law has occurred. See McKesson, 496

U.S. at 39-40, 110 S.Ct. at 2251. If the plaintiff-taxpayer

prevails in its prepayment challenge to the unconstitu-

tional tax, no deprivation of property has occurred, and

the Fourteenth Amendment has not been contravened. Id.

The availability of a predeprivation review constitutes a

procedural safeguard against unlawful deprivations suffi-

cient by itself to satisfy the Due Process Clause. See

McKesson, 496 U.S. at 40 n. 21, 110 S.Ct. at 2251 n. 21 (1990).

Federal due process principles may also be satisfied by a

postdeprivation procedure that represents a clear and certain

remedy for any erroneous, unlawful, or unconstitutional

collection of tax moneys. Id.; Atchison v. O’Connor, 223 U.S.

280, 285, 32 S.Ct. 216, 217, 56 L.Ed. 436 (1912).

b. Fifth Amendment

The Fifth Amendment does not proscribe the taking of

property; it proscribes taking without just compensation.

Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S.

1S titan My cunsh Bao ss

App. 21

264, 297 n. 40, 101 S.Ct. 2352, 2371 n. 40, 69 L.Ed.2d 1 (1981).

A governmental entity may take property so long as it

provides an adequate process for obtaining compensation. Id.

If a property owner utilizes this procedure and is denied just

compensation, the property owner may assert a violation of

the Fifth Amendment. Ruckelshaus v. Monsanto Co., 467 U.S.

986, 1013, 1018 n. 21, 104 S.Ct. 2862, 2878 n. 21, 81 L.Ed.2d

815 (1984). If resort to that process yields just compensation,

then the property owner has no claim against the govern-

ment for a taking. Id.

A governmental entity’s action is not complete in the

sense of causing a constitutional injury until (1) a taking

occurs, and (2) the governmental entity does not provide

an adequate postdeprivation remedy for the property

loss. Hudson v. Palmer, 468 U.S. 517, 532 n. 12, 104 S.Ct.

3194, 3203 n. 12, 82 L.Ed.2d 393 (1984). Although exhaus-

tion of judicial or administrative review procedures is not

required,5 the nature of the constitutional right to just

compensation requires that a property owner utilize the

procedures for obtaining compensation or prove that

such procedures are wholly inadequate to prevail on a

section 1983 claim based on a takings clause violation.

Williamson, 473 U.S. at 194 n. 13, 105 S.Ct. at 3120 n. 13.

3. Application of Law to Facts

In the present case, the trial court concluded that “an

assessment against property and its owner for paving

improvements in an amount greater than [the] benefit

5 See Patsy v. Florida Bd. of Regents, 457 U.S. 496, 102 S.Ct.

2557, 73 L.Ed.2d 172 (1982).

App. 22

conferred violates the Fifth and Fourteenth Amendments

of the United States Constitution and amounts to a taking

of private property for public use without just compensa-

tion.” The trial court further concluded that the assess-

ment constituted a lien and cloud on the title of Sisters’s

property. The trial court reasoned that Sisters filed the

present action to remove the cloud on its title; therefore,

Sisters, as a prevailing party in a section 1983 action, was

entitled to receive reasonable attorney’s fees as provided

by section 1988.

The trial court correctiy concluded that the City’s tax

assessment ordinance was unconstitutional as a matter of

law. The trial court erred, however, in reasoning that any

unconstitutional tax assessment constitutes, as a matter of

law, a taking without just compensation in violation of

the Fifth and Fourteenth Amendments. A localized

assessment, not based on substantial benefits, is per se

unconstitutional when levied because a governmental

entity has no authority to assess a special tax on any basis

other than special benefits. See Norwood, 172 U.S. at 279,

19 S.Ct. at 190; Armstrong v. United States, 364 U.S. 40, 49,

80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960). An unconstitu-

tional special assessment, however, does not automatically

entitle a section 1983 plaintiff to damages and attorney’s

fees for violations of the Fifth and Fourteenth Amend-

ments. See Williamson, 473 U.S. at 194 n. 13, 105 S.Ct. at

3120 n. 13; Federal Deposit Ins. Corp., 921 F.2d at 615.

Sisters, after proving the unconstitutionality of the

assessment ordinance, must establish that the process

provided by article 1105b does not meet the due process

requirements of the Fifth and Fourteenth Amendments to

App. 23

prevail in its 1983 claim. We, therefore, examine the

constitutional sufficiency of the due process afforded by

article 1105b.

The Texas Legislature, pursuant to article 1105b of

the Texas Revised Civil Statutes, designed a system to

insure that only constitutional special taxes are assessed

and collected. Article 1105b provides several procedural

safeguards. Section 9 of article 1105b specifically incorpo-

rates the constitutional mandate that special tax assess-

ments be limited to the amount of benefit conferred on

the property assessed. See Tex.Rev.Crv.StTat. ANN. art. 1105b

(Vernon Supp.1993). Section 9 requires that notice and

opportunity for hearing be provided before any assess-

ment is levied against the property and its owner. Id.

The legislature further required municipalities to

defend their special tax assessments against claims of

arbitrary or fraudulent actions in state court. Section 9

grants the property owner the right to withhold payment

and contest the assessment in a state district court. Id.

6 A cognizable claim under 42 U.S.C. § 1983 arises where (1)

the conduct complained of was committed by a person acting

under color of state law, and (2) this conduct deprived a person

of rights, privileges, or immunities secured by the Constitution

or laws of the United States. 42 U.S.C.A. § 1983 (West

Supp.1993). Sisters alleged the requisite elements for a section

1983 claim. No constitutional law doctrine precludes a property

owner from filing, concurrently with its article 1105b appeals

hearing, a suit to recover damages and attorney’s fees under 42

U.S.C. §§ 1983 and 1988. See Middlesex County Ethics Comm. v.

Garden State Bar Ass'n, 457 U.S. 423, 436, 102 S.Ct. 2515, 2423, 73

L.Ed.2d 116 (1982); Steffel v. Thompson, 415 U.S. 452, 472-73, 94

S.Ct. 1209, 1222, 39 L.Ed.2d 505 (1974); Thomas v. Allen, 837

S.W.2d 631, 633 (Tex.1992) (per curiam).

App. 24

The property owner is not required to first pay the special

assessment, then seek relief in state court for the payment

of an unlawful tax. On the contrary, the statute authorizes

a prepayment challenge to the arbitrary or fraudulent

assessment. Id.

Here, Sisters have not paid, and the City has not

collected, any tax revenue levied against Sisters. Further,

the City’s tax lien, during the pendency of the plaintiff-

taxpayer’s appeal, is unenforceable. A section 1983 claim,

therefore, is not necessary to suspend the collection of an

unconstitutional special assessment.

The automatic right to judicial review prior to pay-

ment represents a clear and certain remedy for any arbi-

trary assessment not based on special benefits. See

McKesson, 496 U.S. at 40, 110 S.Ct. at 2251. Predeprivation

review constitutes a procedural safeguard against unlaw-

ful deprivations sufficient by itself to satisfy the require-

ments of both the Fifth and Fourteenth Amendments.

U.S. Const. amends, V, XIV; see McKesson, 496 U.S. at 40;

110 S.Ct. at 2251; Williamson, 473 U.S. at 1945 n. 13, 105

S.Ct. at 3120 n. 13.

Because of the safeguards and due process created by

article 1105b, arbitrary actions by a city do not automat-

ically translate into a federal constitutional injury com-

pensable under sections 1983 and 1988. In determining

what process is “due” under the Fifth and Fourteenth

Amendments, the trial court must consider the process

the City Council provided Sisters as well as the judicial

review provided under article 1105b. A plaintiff must

show the inadequacy of state remedies to redress its

App. 25

alleged loss; otherwise, the plaintiff’s evidence is insuffi-

cient to show a lack of due process and a violation of

section 1983. See Myers v. Adams, 728 S.W.2d 771, 772

(Tex.1987) (per curiam). :

This is not to say that a plaintiff-taxpayer in an article

1105b appeals hearing cannot meet its burden to show a

violation of its federal constitutional rights. Rather, the

plaintiff-taxpayer, in a special tax assessment case, must

establish that the pre-assessment hearings coupled with

judicial review applying the substantial evidence rule is

not adequate to preserve its right to just compensation

and due process of law; therefore, a 1983 cause of action

is necessary. See McKesson, 496 U.S. at 40 n. 21, 110 S.Ct.

at 2251 n. 21; Williamson, 473 U.S. at 194 n. 13, 105 S.Ct. at

3120 n. 13; Hodel, 452 U.S. at 297, 101 S.Ct. at 2371; Federal

Deposit Ins. Corp., 921 F.2d at 615.

The date on which a taking or deprivation of prop-

erty must be measured is the date on which govern-

mental action “ ‘immediately and drastically diminishes

the value of the [property owner’s] interest.’” See Men-

nonite Bd. of Missions v. Adams, 462 U.S. 791, 798, 103 S.Ct.

2706, 2711, 77 L.Ed.2d 180 (1983) (citing Mullane v. Central

Hanover B. & T. Co., 339 U.S. 306, 313-14, 70 S.Ct. 652,

656-57, 94 L.Ed. 865 (1950)). A statutory special tax lien,

although unenforceable pending appellate review, may

represent such a scenario. See Mennonite, 462 U.S. at 798,

103 S.Ct. at 2711.

In the present case, there is no record evidence, how-

ever, that the City’s lien rendered Sisters’s property

wholly useless or caused a diminution in economic value.

In its conclusions of law, the trial court did not find that

App. 26

invalidation of the assessment and lien, unaccompanied

by payment of damages, would not compensate Sisters

for the economic loss suffered as a result of the lien’s

interference with Sisters’s property. The trial court did

not determine what injury, if any, was caused by the

lien’s interference with the property’s title. Sisters did not

seek compensation for the lien’s interference beginning

with the date the lien attached and ending on the date the

lien became void and unenforceable. See San Diego Gas &

Elec. v. City of San Diego, 450 U.S. 621, 657-58, 101 S.Ct.

1287, 1307, 67 L.Ed.2d 551, (1981) (Brennan, J., dissent-

ing). Rather, Sisters sought only attorney’s fees as a pre-

vailing party in a section 1983 cause of action.

Sisters utilized the article 1105b process and pre-.

vailed. The City has not collected any tax revenue

assessed against Sisters’s property. The record does not

establish that the lien’s interference with the property’s

title immediately and drastically diminished the prop-

erty’s value, rendered the property wholly useless, or

caused a diminution in economic value. See Mennonite,

462 U.S. at 798, 103 S.Ct. at 2711. Consequently, Sisters

did not meet its burden to show an unconstitutional

taking or a deprivation of property without due process

of law in violation of the Fifth and Fourteenth Amend-

ments. We, therefore, conclude that the trial court erred

in finding a constitutional injury compensable under sec-

tion 1983. We sustain the City’s eighth and tenth points of

error.

In points of error seven and eleven, the City contends

that the trial court erred in finding federal constitutional

violations because substantial evidence exists to support

the assessment. We have already determined that the

—

App. 27

record does not contain substantial evidence to reason-

ably sustain the City Council’s finding that the street

improvements would enhance the value of Sisters’s prop-

erty in a sum equal to the amount assessed. Accordingly,

we overrule the City’s seventh and eleventh points of

error.

ATTORNEY’S FEES

In its twelfth point of error, the City complains that

the trial court erred in awarding Sisters its attorney’s

fees. The City argues that Sisters is not entitled to recover

attorney’s fees under state law or under section 1988.

Under Texas law, attorney’s fees are not recoverable

unless authorized by statute or by contract. See New

Amsterdam Casualty Co. v. Texas Indus. Inc., 414 S.W.2d 914,

915 (Tex.1967). Attorney’s fees are not recoverable under

article 1105b, the statute that provided Sisters with the

hearing and right to appeal. See Tex.Rev.Crv.StaT.ANN. art.

1105b (Vernon Supp.1993).

Under section 1988, attorney’s fees are available to a

prevailing party in a section 1983 cause of action. See

Byrd, 713 S.W.2d at 229. We have already determined,

however, that the City’s imposition of an assessment lien

on Sisters’s property did not constitute a taking of private

property without just compensation or a deprivation of

property without due process of law in violation of the

United States Constitution. U.S. Const. amends. V, XIV.

Because no federal constitutional violations occurred,

there is no basis for the trial court’s award of attorney’s

fees under section 1988(b). Accordingly, the trial court

App. 28

abused its discretion in awarding Sisters attorney’s fees.

We sustain the City’s twelfth point of error.

FINDINGS OF FACT AND

CONCLUSIONS OF

LAW

In its thirteenth point of error, the City claims that

there is no evidence or insufficient evidence to support a

majority of the trial court’s findings of fact and conclu-

sions of law. The City does not brief its thirteenth point of

error separately. Instead, the City asserts that its conten-

tions are sufficiently addressed in its other twelve points

of error. In view of our disposition of the City’s first

twelve points of error, we need not address the City’s

thirteenth point of error. See Tex.R.App.P 90(a).

Accordingly, we reverse the trial court’s award of

attorney’s fees and render that Sisters take nothing on its

claim for attorney’s fees. We affirm the trial court’s judg-

ment in all other respects.

ce coh eet 5 sel el al am

App. 29

NO. 88-08122-G

SISTERS OF THE HOLY §

FAMILY OF NAZARETH, A § IN THE 134TH

TEXAS CORPORATION, § JUDICIAL

§ DISTRICT

PLAINTIFF, 2 COURT OF

VS. § DALLAS

CITY OF GRAND PRAIRIE, § COUNTY, TEXAS

S (Filed

DEFENDANT g

g Mar. 5, 1992)

STIPULATIONS FOR TRIAL

Come now, Plaintiff SISTERS OF THE HOLY FAMILY OF

NAZARETH, A TEXAS CORPORATION, and Defendant,

CITY OF GRAND PRAIRIE who together would respect-

fully show the Court as follows:

I.

THE FOLLOWING STIPULATIONS WERE MADE ON

AUGUST 7, 1989:

1. Plaintiff owns property that abuts North-

west 19th Street in the City of Grand Prairie,

Dallas County, Texas.

2. Defendant is a Municipal Corporation which

operates by virtue of the laws of the State of

Texas and has adopted a home rule charter pur-

suant to the Texas Constitution.

3. Plaintiff is a person owning or claiming an

interest in property assessed by Defendant pur-

suant to Article 1105b V.A.C.S.

App. 30

4. An assessment was levied against the prop-

erty belonging to Plaintiff through the passage

and enactment of Ordinance number 4362.

5. Defendant has or will levy and file liens

against the property belonging to Plaintiff pur-

suant to such Ordinance.

6. This action is filed in part pursuant to Arti-

cle 1105b Section 9 and constitutes an appeal

from the action of Defendant and is filed within

the time period prescribed by such section.

7. Plaintiff has been assessed $37,270.00 by

Defendant, based on a dollar amount per front

linear footage of its property abutting on North-

west 19th Street.

8. Plaintiff was assessed at the rate of $37.80

per front linear foot.

9. Other adjacent property owners were

assessed different amounts or nothing at all.

10. The above assessment represents a portion

of the costs of improving Northwest 19th Street

in such City between IH30 and Carrier Parkway.

11. The governing body of Defendant deter-

mined that such assessment was reasonable and

that the property owned by Plaintiff received or

would receive special benefits through

increased property value not common to the

public at large as a result of the widening and

improvement of Northwest 19th Street.

12. The governing body of Defendant further

determined that such special benefits equaled

the amount of the assessment.

App. 31

13. The Defendant’s governing body therefore

determined that the Plaintiff’s parcel of prop-

erty had or would receive special benefits of

$37.80 per front linear foot as a result of the

improvement of Northwest 19th Street.

14. The special assessments against Plaintiff

and its properties has been (or will be) levied

against Plaintiff and its property and assessment

liens have been or will be filed of record with

the Dallas County Clerk’s office against such

properties.

15. The minutes for the briefing session for the

June 7, 1988 council meeting accurately reflect

the proceedings.

16. The minutes for the council meeting of

June 7, 1988 accurately reflect the proceedings.

17. The minutes for the briefing session for the

June 14, 1988 council meeting accurately reflect

the proceedings.

18. The minutes for the council meeting of

June 14, 1988 accurately reflect the proceedings.

19. On June 7, 1988, a hearing on the proposed

assessments was held before Defendant’s gov-

erning body.

20. Prior to the June 7, 1988 council meeting,

each council member received a “Council Com-

munication” regarding the proposed assess-

ment.

21. This “Council Communication” contained

the only written information pertaining to the

assessment that was provided to each of the

council members prior to the June 7, 1988 coun-

cil meeting.

App. 32

22. The Council Communication for the June 7,

1988 meeting contained an assessment roll

which was prepared by the Public Works

Department of Grand Prairie.

23. The Public Works Department used an

enhancement study which was prepared by

Evaluation Associates and dated April 10, 1987

to prepare its assessment roll.

24. The Public Works Department did not use

any other appraisals or enhancement studies to

prepare the “assessment roll”.

25. The council relied upon the Public Works

Department to provide a proper assessment roll.

26. Evaluation Associates used a “land only”

basis for its enhancement study, without regard

to the improvements on Plaintiffs (or anyone

else’s) property.

27. At the time of the assessment, the Plain-

tiff’s property was used for religious purposes

as a convent, retirement home, retreat center,

chapel, and cemetery complex.

28. The matt was tabled on June 7, 1988. On

June 14, 1988, tne matter was again considered,

and the action about which Plaintiff is complain-

ing occurred.

29. The construction and improvement of

Northwest 19th Street was made necessary due

to the growth of Grand Prairie, and the tremen-

dous increase in traffic volume, actual and

potential, on Northwest 19th Street.

30. The governing body of Defendant met as a

body in an executive closed-door session on

June 14, 1988 in connection with the assess-

ments.

App. 33

31. The Council consulted with the city attor-

ney during this executive session.

32. The Council did not consult with the city

attorney during the open session on June 14,

1988 in regards to the proper assessments.

33. Subsequent to the executive session, Mayor

Debo stated: “ . . . after consultation with the

City Attorney, the Council has found that the

appraisals are reasonable and fair, and that they

are acceptable and salient for the use of the

land.”

34. On June 14, 1988, subsequent to the closed

executive session, a motion was made at a regu-

lar meeting of the Defendant’s governing body

to levy the assessments as per Ordinance 4362

and such motion was carried.

Il.

THE FOLLOWING ADDITIONAL STIPULATIONS ARE

BEING MADE AT THIS TIME:

35. The paving assessments constitute a statu-

tory lien (interference) with Plaintiff’s title to

the property.

36. Such lien will continue until the City of

Grand Prairie releases it, or until a final judg-

ment by this Court is entered, decreeing that the

lien of the City is invalid.

37. A reasonable attorney fee for the legal ser-

vices of Charles J. Winikates would be $__ per

hour.

38. A reasonable attorney fee for the legal ser-

vices of David S. Curtis would be $150.00 per

hour.

App. 34

39. A reasonable attorney fee for the legal ser-

vices of Charles J. Winikates, Jr. would be

$100.00 per hour.

40. It was reasonable and necessary for Charles

J. Winikates to spend 73.65 hours in represent-

ing the Plaintiff’s interest in connection with

this lawsuit from June, 1988 until March 4, 1992.

41. It was reasonable and necessary for David

S. Curtis to spend 45.50 hours in representing

the Plaintiff's interest in connection with this

lawsuit from June, 1988 until March 4, 1992.

42. It was reasonable and necessary for Charles

J. Winikates, Jr. to spend 307.63 hours in repre-

senting the Plaintiff’s interest in connection with

this lawsuit from June, 1988 until March 4, 1992.

43. It was reasonable and necessary for the law

firm of Winikates & Curtis (Winikates & Wini-

kates after December 1, 1991). to spend $4,171.07

for costs in representing the Plaintiff’s interest

in connection with this lawsuit from June, 1988

until March 4, 1992.

44. If this case is appealed, a reasonable fee for

Winikates & Winikates to charge for the neces-

sary legal work in representing the Sisters

before the Court of Appeals would be $5,000.00.

45. If a petition for writ of error is filed with

the Supreme Court, a reasonable fee for Wini-

kates & Winikates to charge for the necessary

legal work in representing the Sisters would be

$3,000.00; and if the writ is granted, an addi-

tional fee of $2,000.00 would be reasonable and

necessary.

46. Executive sessions of the City Council of

Grand Prairie are always closed to the public.

App. 35

The only people who attend are members of the

Council, the City Attorney, and, occasionally,

other individuals selected by the Council.

On November 6, 1991, the Court partially granted Plain-

tiff’s Motion for Partial Summary Judgment, and found

“there was not substantial evidence that the subject prop-

erty received a special benefit equal to, or in excess of the

amount of the assessment.

Il.

CONTESTED ISSUES OF LAW:

1. The parties agree that if the Court was cor-

rect in finding “no substantial evidence,” then

the assessment was imposed contrary to State

law (V.A.T.S Article 1105b).

2. Whether the assessment that was imposed

by the city was based upon an arbitrary deter-

mination of benefits.

3. Whether, as a matter of law, the city’s

actions constituted a taking of private property

without just compensation, contrary to the Fifth

and Fourteenth Amendments to the U.S. Consti-

tution.

4. Whether, as a matter of law, the executive

sessions, which were closed to Plaintiff, and

conducted during the June 7 and 14th, 1988

meetings of the Grand Prairie City Council

meetings denied Plaintiff the right to a public

hearing as provided for, and guaranteed by,

Article 1105b, Section 9, V.A.C.S..

5. Whether, the closed executive sessions

which were closed to Plaintiff, and conducted

App. 36

during the June 7 and 14th, 1988 meetings, of

the Grand Prairie City Council meetings, vio-

lated the Texas Open Meetings Law.

6. Whether the city’s actions bring it within 42

U.S.C. sections 1981-1986.

7. Whether the city’s actions constituted viola-

tions of the Sister’s rights pursuant to Sections

1981-1987 of Title 42 of the United States Code.

8. Whether the Sisters should be awarded

attorney’s fees pursuant to Section 1988 of title

42 of the United States Code.

SIGNED, and RESPECTFULLY SUBMITTED this 5th

day of March, 1992.

WINIKATES & WINIKATES

Stewart Title Building, Suite 200

5728 LBJ Freeway

Dallas, Texas 75240

214/386-0636

ATTORNEYS FOR THE SISTERS

OF THE HOLY FAMILY OF NAZARETH

BY: /s/ Charles J. Winikates, Jr.

CHARLES J. WINIKATES, JR.

Texas Bar No. 21771010

CITY OF GRAND PRAIRIE, TEXAS

Office of the City Attorney

P.O. Box 530011

GRAND PRAIRIE, TEXAS

BY: /s/ Thomas L. Allensworth

THOMAS L. ALLENSWORTH

ATTORNEY FOR DEFENDANT

Texas Bar No. 01077300

App. 37

Approved this __ day of March,

1992.

Judge Presiding

ENDORSEMENT ON INSTRUMENT NO. 88-08122-G

Sisters of the Holy Family of Nazareth

VS.

City of Grand Prairie

STIPULATIONS FOR TRIAL

Filed: March 5, 1992

App. 38

NO. 88-08122-G

SISTERS OF THE HOLY §

FAMILY OF NAZARETH, § IN THE 134TH JUDICIAL

A TEXAS CORPORATION, § pictRICT COURT OF

PLAINTIFF, § DALLAS COUNTY,

VS. § TEXAS

CITY OF GRAND S (Filed April 21, 1992)

PRAIRIE, ;

DEFENDANT g

ADDITIONAL STIPULATIONS FOR TRIAL

Come now, Plaintiff SISTERS OF THE HOLY FAMILY OF

NAZARETH, A TEXAS CORPORATION, and Defendant,

CITY OF GRAND PRAIRIE who together would respect-

fully show the Court as follows:

I.

THE FOLLOWING ADDITIONAL STIPULATIONS

WERE MADE ON APRIL 20, 1992. They are to be read in

conjunction with the STIPULATIONS FOR TRIAL which

was filed with the Court on March 5, 1992, which are

adopted and incorporated by reference herein:

47. The parties stipulate and agree that the City adopted

three (3) ordinances concerning the paving assessment

involved in this dispute, and that those three (3) ordi-

nances are Grand Prairie Ordinance Numbers 4328, 4362,

and 4620. True and correct copies of these ordinances are

attached hereto.

~

written Meni abe Cree os

Sto CE em

App. 39

48. The parties stipulate and agree that Plaintiff

received proper notice, prior to the June 7th, 1988 meet-

ing, of the City’s intent to impose a paving assessment.

49. The parties stipulate and agree that there were two

(2) hearings before the City Council of the City of Grand

Prairie at which the paving assessment was discussed;

the first hearing being on the 7th of June, 1988, during

which the matter was tabled, and the second hearing

being on the 14th day of June, 1988.

50. The parties stipulate and agree that the minutes of

the May 3rd, June 7th, and June 14th, 1988 meetings of

the Grand Prairie City Council (including the briefing

session minutes for the same dates), are true and correct

copies of the minutes as-they appear in the Minute Book

of the City of Grand Prairie. True and correct copies of

these minutes are attached hereto.

51. The parties stipulate and agree that accompanying

the City Council Communication referred to in stipula-

tions 20 and 21, were ordinances relating to the paving

assessment. The communication and ordinances con-

tained the only written information pertaining to the

assessment that was provided to each of the council

members prior to each of the council meetings.

52. The parties stipulate and agree that an assessment

roll, referred to in stipulation 22, was made a part of the

relevant Grand Prairie Ordinances relating to the paving

assessments.

53. A reasonable attorney fee for the legal services of

Charles J. Winikates would be $200.00 per hour.

App. 40

54. It was reasonable and necessary for Charles J. Wini-

kates to spend 93.90 hours in representing the Plaintiff's

interest in connection with this lawsuit from June, 1988

until April 19, 1992. This stipulation is in lieu of former

stipulation number 40.

55. It was reasonable and necessary for Charles J. Wini-

kates, Jr. to spend 341.63 hours in representing the Plain-

tiff’s interest in connection with this lawsuit from June,

1988 until April 19, 1992. This stipulation is in lieu of

former stipulation number 42.

56. The parties stipulate and agree that because the

Plaintiff is a religious and charitable organization, the

attorneys representing the Sisters of the Holy Family of

Nazareth have been billing the Plaintiff for only one-half

of the hourly rates which the parties have agreed are

reasonable. The Plaintiff's attorneys will charge the Plain-

tiff the full fee that is awarded by the Court if it is in

excess of the one half rate that the attorneys have been

charging the Sisters. The Plaintiff has paid the full

amount of Court costs in this case.

57. The parties stipulate and agree that the copies of the

monthly paving assessment statements from the City, the

letter from the Public Works Department of the City

dated December 5, 1989, and the certified letter from

Wright & Associates, dated June i5, 1990, all of which are

attached hereto, are true and correct copies of documents

that were sent to the Sisters of the Holy Family of

Nazareth by the City of Grand Prairie, and received by

the Sisters of the Holy Family of Nazareth.

58. The Court may award such additional attorney fee

to Plaintiff for work done after April 19, 1992, as the

Sigs i Nai ncaa cists 205

ih ids RR at en a bE A

NS baa

App. 41

Court deems appropriate, without further stipulations or

testimony.

59. Everything necessary to be done by the City for a

statutory lien to attach has been done. This is in lieu of

stipulations numbers 5 and 14.

SIGNED, and RESPECTFULLY SUBMITTED this 21st

day of April, 1992.

WINIKATES & WINIKATES

Stewart Title Building, Suite 200

5728 LBJ Freeway

Dallas, Texas 75240

214/386-0636

ATTORNEYS FOR THE SISTERS

OF THE HOLY FAMILY

OF NAZARETH

BY: /s/ Charles J. Winikates, Jr.

CHARLES J. WINIKATES, JR.

Texas Bar No. 21771010

CITY OF GRAND PRAIRIE, TEXAS

Office of the City Attorney

P.O. Box 530011

GRAND PRAIRIE, TEXAS 75053-0011

BY: /s/ Thomas L. Allensworth °

THOMAS L. ALLENSWORTH

ATTORNEY FOR DEFENDANT

Texas Bar No. 01077300

Approved this __ day of April, 1992.

Judge Presiding

App. 42

NO. 88-08122-G

SISTERS OF THE HOLY § IN THE 134TH JUDICIAL

FAMILY OF NAZARETH, § DISTRICT COURT OF

A TEXAS DALLAS COUNTY,

CORPORATION, TEXAS

PLAINTIFF, (Filed May 22, 1992)

VS.

CITY OF GRAND

PRAIRIE,

DEFENDANT

MMMM MMM MM MM

PLAINTIFF’S PROPOSED. FINDINGS OF FACT

AND CONCLUSIONS OF LAW

COMES NOW, SISTERS OF THE HOLY FAMILY OF

NAZARETH A TEXAS CORPORATION, and files this

Plaintiff’s Proposed Findings of Fact and Conclusions of

Law:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The above-captioned cause came on for trial before

the Court without a jury on April 21, 1992.

The Plaintiff appeared in person and by and through

its attorney’s [sic] of record.

The Defendant appeared by and through its attor-

neys of record.

After considering the pleadings, the evidence, the

argument and briefs from counsel, the Court, in response

to a request from Defendant, makes its findings of fact

and conclusions of law as follows:

>

encase uate .

10.

App. 43

There was not substantial evidence that the subject

property received a special benefit equal to, or in

excess of the amount assessed.

There is no admissible evidence of special benefits

accruing to the subject property.

The Sisters received no special benefit as a result of

the improvements to 19th street.

The assessment by the City of Grand Prairie

amounted to an interference with the Sisters’ title to

the property, and constituted a taking without just

compensation, contrary to the Fifth and Fourteenth

Amendments of the U.S. Constitution.

The Sisters are entitled to receive $67,939.07 plus

interest at the rate of ten (10) percent per annum

until paid for as attorney fees.

If this case is appealed, the Sisters are entitled to an

additional sum of $5,000.00 as attorney fees.

If a petition for writ of error is filed with the Texas

Supreme Court, the Sisters are entitled to an addi-

tional sum of $3,000.00 as attorney fees.

If the Texas Supreme Court grants a Writ in this case,

the Sisters are entitled to an additional sum of

$2,000.00 as attorney fees.

Plaintiff owns property that abuts Northwest 19th

Street in the City of Grand Prairie, Dallas County,

Texas.

Defendant is a Municipal Corporation which oper-

ates by virtue of the laws of the State of Texas and

11.

12.

13.

14.

33.

16.

17.

18.

19.

App. 44

has adopted a home rule charter pursuant to the

Texas Constitution.

Plaintiff is a person owning or claiming an interest

in property assessed by Defendant pursuant to Arti-

cle 1105b V.A.C.S.

An assessment was levied against the property

belonging to Plaintiff through the passage and enact-

ment of Ordinance number 4362.

Everything necessary to be done by the City for a

statutory lien to attach has been done.

This action is filed in part pursuant to Article 1105b

Section 9 and constitutes an appeal from, and a

review of, an action of Defendant and is filed within

the time period prescribed by such section.

Prior to filing this lawsuit, the Sisters of the Holy

Family of Nazareth had exhausted their remedies at

the City Council level.

Plaintiff has been assessed $37,270.00 by Defendant,

based on a dollar amount per front linear footage of

its property fronting on Northwest 19th Street.

Plaintiff was assessed at the rate of $37.80 per front

linear foot.

Other adjacent property owners were assessed dif-

ferent amounts or nothing at all.

The above assessment represents a portion of the

cost of improving Northwest 19th Street in Grand

Prairie between IH30 and Carrier Parkway.

3

3

8

th

20.

21.

22.

24.

25.

26.

27.

App. 45

The governing body of Defendant determined that

such assessment was reasonable and that the prop-

erty owned by Plaintiff received or would receive

special benefits through increased property value

not common to the public at large as a result of the

widening and improvement of Northwest 19th

Street.

The governing body of Defendant further deter-

mined that such special benefits equaled the amount

of the assessment.

The Defendant’s governing body therefore deter-

mined that the Plaintiff’s parcel of property had or

would receive special benefits of $37.80 per front

linear foot as a result of the improvement of North-

west 19th Street.

The minutes for the briefing session for the June 7,

1988 council meeting accurately reflect the proceed-

ings.

The minutes for the council meeting of June 7, 1988

accurately reflect the proceedings.

The minutes for the briefing session for the June 14,

1988 council meeting accurately reflect the proceed-

ings.

The minutes for the council meeting of June 14, 1988

accurately reflect the proceedings.

There were two (2) hearings before the City Council

of the City of Grand Prairie at which the paving

assessment was discussed; the first hearing being on

the 7th of June, 1988, during which the matter was

28.

29.

30.

aa.

cd

33.

34.

App. 46

tabled, and the second hearing being on the 14th day

of June, 1988.

Prior to the June 7, 1988 council meeting, each coun-

cil member received a “Council communication”

(with ordinances relating to the paving assessments

attached) regarding the proposed assessment.

This “Council Communication” (with ordinances

relating to the paving assessments attached) con-

tained the only written information pertaining to the

assessment that was provided to each of the council

members prior to the June 7, 1988 council meeting.

The Council Communication for the June 7, 1988

meeting contained an assessment roll which was

prepared by the Public Works Department of Grand

Prairie.

The Public Works Department used an enhancement

study which was prepared by Evaluation Associates

and dated April 10, 1987 to prepare its assessment

roll.

The Public Works Department did not use any other

appraisals or enhancement studies to prepare the

“assessment roll”.

The council relied upon the Public Works Depart-

ment to provide a proper assessment roll.

Evaluation Associates used a “land only” basis for

its enhancement study, without regard to the

improvements on Plaintiff’s (or anyone else’s) prop-

erty.

_— ee ee ee eeeeeeeeeeeEeeEeEeEeeeEeE eee

a0

36.

38.

39.

40.

41.

42.

App. 47

At the time of the assessment, the Plaintiff’s prop-

erty was used for religious purposes as a convent,

retirement home, retreat center, chapel, and ceme-

tery complex.

The matter was tabled on June 7, 1988. On June 14,

1988, the matter was again considered, and the

action about which Plaintiff is complaining occurred.

The construction and improvement of Northwest

19th Street was made necessary due to the growth of

Grand Prairie, and the tremendous increase in traffic

volume, actual and potential, on Northwest 19th

Street.

The governing body of Defendant met as a body in

an executive closed-door session on June 14, 1988 in

connection with the assessments.

The Council consulted with the city attorney during

this executive session.

The Council did not consult with the city attorney

during the open session on June 14, 1988 in regards

to the proper assessments.

During the closed Executive session, the City Coun-

cil asked the City Attorney if they could remove the

property owned by the Sisters of the Holy Family of

Nazareth from the assessment roll, and the City

Attorney responded that, in his opinion, they could

not.

Subsequent to the executive session, on June 14th

1988, Mayor Debo stated: “ . . . after consultation

with the City Attorney, the Council has found that

43.

44.

45.

46.

47.

48.

App. 48

the appraisals are reasonable and fair, and that they

are acceptable and salient for the use of the land.”

Subsequent to the executive session, on June 14th,

1988, “Councilmember Galligan stated that the City

Attorney has advised that legally the Council cannot

change the assessment on any particular property.”

The City Attorney’s advice to the Council in the

closed Executive session was erroneous because pur-

suant to V.A.T.S. Article 1105(b) Section 9, a City’s

governing body “shall have the power to correct any

errors, inaccuracies, irregularities and invalididities

[sic], and to supply any deficiencies [sic] and to

determine the amounts of assessments and all other

matters necessary... .” ;

On June 14, 1988, subsequent to the closed executive

session, a motion was made at a regular meeting of

the Defendant’s governing body to levy the assess-

ments as per Ordinance 4362 and such motion was

carried.

Neither Plaintiff nor its property received special

benefits as a result of the widening and improve-

ment of Northwest 19th Street.

There is no evidence that Plaintiff's property had

drainage problems along Northwest 19th Street prior

to the widening of Northwest 19th Street.

There is no evidence that increased traffic on North-

west 19th Street will provide a special benefit to the

Plaintiff’s property.

eetepatct eth:

aie ahepniaiiae lial 9 OR RI ed US

el

49.

50.

51.

YF

8

54.

a.

App. 49

There is no evidence that the widening of Northwest

19th Street will provide better access to Plaintiff’s

property from Northwest 19th Street.

The assessments were not made in compliance with

Article 1105b, V.A.C.S.

The City Council did not consider substantial evi-

dence that the Plaintiff's property would be

enhanced by at least $37,200.00.

There is no substantial evidence that the improve-

ment to Northwest 19th Street will create special

benefits to the Plaintiff’s property.

Evaluation Associates evaluated the Plaintiff’s prop-

erty as single family residential development prop-

erty.

It is uncertain whether a different use of the Plain-

tiff’s property is reasonably probable within the

immediate future or a reasonable time.

There is not a wide market for the Plaintiff’s prop-

erty for its present uses.

CONCLUSIONS OF LAW

B

The closed executive session violated the Texas

Open Meetings Law.

The closed executive session denied Plaintiff the

rights to a public hearing as provided for, and guar-

anteed by Article 1105b, Section 9, V.A.C.S.

The city acted in an arbitrary, capricious and unrea-

sonable manner in proposing the assessments.

10.

11.

App. 50 .

The city acted in an arbitrary, capricious and unrea-

sonable manner in enacting Ordinance No. 4362.

Special benefit is not merely a creature of statute.

Both our State and Federal Constitutions limit

assessments to the amount of benefit conferred.

An assessment against property and its owners for

paving improvements in an amount greater than

benefit conferred violates Section 17 of Article 1 of

the Constitution of Texas and the Fifth and Four-

teenth Amendments of the United States Constitu-

tion and amounts to a taking of private property for

public use without just compensation.

The term “special benefit” connotes a benefit more

localized than a general community benefit.

There is no presumption of special benefit which

arises simply by virtue of the improvement of a city

street.

There is a strong presumption in favor of the val-

idity of a municipal ordinance and review of an

ordinance by the Court is governed by the substan-

tial evidence rule.

Substantial evidence need not be much evidence, but

substantial evidence means more than a scintilla.

A Court is not bound to accept the city’s evidence

uncritically but it has the power to closely examine

the evidence, however, taking evidence as a whole,

the action of the city government should be affirmed

unless reasonable minds could not have reached the

same decision.

Me Sa wl ORD RRP ear « MRE NRO Ma Se

Wiis ie mn -

12.

13.

14.

15.

16.

17.

18.

19.

20.

App. 51

The amount of special assessment cannot be based

on an arbitrary or unreasonable determination of

special benefits.

There was no evidence presented to the Grand Prai-

rie City Council as to special benefits accruing to

Plaintiff or its property at the public hearing on June

7, 1988, or on June 14, 1988.

There was no evidence of special benefits accruing

to Plaintiff or its property presented at the time of

trial. ©

The levy of the special assessments by Defendant

against Plaintiff and its property amounted to a tak-

ing of private property for public purposes without

just compensation.

The levy of special assessments and the filing of

liens against the Plaintiff and its property deprived

Plaintiff of significant property interests without due

process of law.

Plaintiff is entitled to reasonable attorney’s fees

unless special circumstances would render the

award of fees unjust.

The award of attorney’s fees is discretionary with

the Court. ‘

No evidence was presented that would show or

establish that the award o° attorney’s fees would be

unjust.

The attorney’s fees which this Court awarded, and

which are as set forth above, were both necessary

and reasonable.

App. 52

21. The city’s actions constituted a violation of the fifth

amendment to the U.S. Constitution.

22. The city’s actions constituted a violation of the four-

teenth amendment to the U.S. Constitution.

23. The city’s actions violated Sections 1981-1987 of the

United States Code.

24. It is appropriate to award Plaintiff attorneys fees

pursuant to Section 1988 of title 42 of the United

States Code.

SIGNED this 22nd day of May, 1992.

/s/ Anne Ashby Packer

JUDGE PRESIDING

Respectfully submitted

WINIKATES & WINIKATES

Stewart Title Building, Suite 200

5728 LBJ Freeway

Dallas, Texas 75240

214/386-0636

ATTORNEYS FOR THE

SISTERS OF THE

HOLY FAMILY OF NAZARETH

BY: /s/ Charles J. Winikates, Jr.

CHARLES J. WINIKATES, JR.

Texas Bar No. 21771010

CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of May, 1992, a

true and correct copy of the foregoing Plaintiff’s Pro-

posed Findings of Fact and Conclusions of Law is being

sent by certified mail to the Defendant, City of Grand

le EEL te LO at

App. 53

Prairie, by and through its attorney of record, R. Clayton

Hutchins, Esquire.

/s/ Charles J. Winikates, Jr.

CHARLES J. WINIKATES, JR.

ENDORSEMENT ON INSTRUMENT NO. 88-08122-G

Sisters of the Holy Family of Nazareth

vs.

City of Grand Prairie

PLAINTIFF’S FINDINGS OF FACT AND CONCLUSIONS

OF LAW

Filed: May 22, 1992 BILL LONG, District Clerk

Dallas County, Texas /s/ Deputy