Davis v. Zoning Board of Adjustment of La Porte

853 S.W.2d 650, 1993 Tex. App. LEXIS 821, 1993 WL 81238
CourtCourt of Appeals of Texas
DecidedMarch 25, 1993
DocketC14-92-00876-CV
StatusPublished
Cited by12 cases

This text of 853 S.W.2d 650 (Davis v. Zoning Board of Adjustment of La Porte) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Zoning Board of Adjustment of La Porte, 853 S.W.2d 650, 1993 Tex. App. LEXIS 821, 1993 WL 81238 (Tex. Ct. App. 1993).

Opinion

OPINION

ROBERTSON, Justice.

The district court dismissed the petition of Albert W. Davis, Rita Davis, Betty Mills, and Edwin N. Mills, appellants, because they failed to timely invoke the trial court’s jurisdiction. Appellants, in three points of error, claim the trial court improperly dismissed their petition. We affirm.

David and Debbie Couch 1 , sought a permit to build a 2000 square foot building on their property. A City of La Porte building official initially denied the permit but subsequently issued the permit on September 26,1989. Appellants appealed the official’s decision to the Zoning Board of Adjustment of the City of La Porte, appellee. See TexLocal Gov’t Code Ann. § 211.010 (Vernon 1988). Appellee denied appellant’s appeal on November 7, 1989.

Appellants then sought review of appel-lee’s decision in the district court. Appellants filed their original petition seeking review of appellee’s decision on November 10, 1989, and asked the trial court to grant a writ of certiorari directing appellee to send copies of its decision regarding the permits to the court. See TexLocal Gov’t Code Ann. § 211.011 (Vernon 1988). A hearing was held on December 12, 1989, and the trial court granted the writ, and set bond for issuance of the writ at $100. Appellants failed to have the writ issued.

On October 11, 1991, almost two years after appellants filed their original petition, appellee filed a plea in abatement. Appel-lee based its plea on the fact that appellants, in their second amended petition, no longer sought issuance of the writ, and having failed to have the writ issued, they had not properly invoked the jurisdiction of the trial court. Appellants attempted to pay the bond and have the writ issued on October 15, 1991. However, this attempt was denied by court personnel because the district clerk of the trial court cancelled the writ because it had become stale.

The trial court denied appellants’ motion to have the writ issued on October 16,1991. Appellants filed a motion for continuance, and it was granted by the trial court on October 18, 1991. On November 11, 1991 the trial court granted appellee’s plea in abatement and gave appellants thirty days to amend their petition. On the thirtieth day, appellants filed their third amended petition which once again sought issuance of the writ. On December 13, 1991 appellants requested submission for their Motion for Issuance of the Writ of Certiorari and a hearing was set. The trial court denied appellants’ request for writ of certiorari on January 28, 1992.

Then on April 6, 1992, the trial court dismissed appellee, finding appellants did not timely invoke the jurisdiction of the court. The trial court denied appellants’ motion to reconsider, and their motion for new trial. The district court’s order dismissing appellee also severed appellants’ action against appellee from the nuisance claim against the other defendants.

*652 In their first point of error, appellants claim the trial court erred in dismissing appellee because § 211.011 of the Local Government Code providing for appeal does not require service of the writ within any particular amount of time. The order dismissing appellee states [appellants] have failed to obtain service of a writ of certiorari and invoke jurisdiction of this Court in the timely fashion contemplated by § 211.011 of the Texas Local Government Code.” A trial court has the inherent authority to dismiss a lawsuit for a party’s failure to prosecute it with due diligence. Veterans’ Land Board v. Williams, 543 S.W.2d 89, 90 (Tex.1976) (per curiam). A court has the authority to dismiss a suit for failure to prosecute it with due diligence even without statutory or rule authority. Id. Dismissal of a suit for want of prosecution is within the trial court’s judicial discretion, subject to review only upon a clear showing of abuse. Id. This discretion can be no less in a situation such as the one before this court, where the party failed to timely invoke the jurisdiction of the trial court.

Appellants sought judicial review of an administrative decision. The method provided by the legislature for transferring a controversy from the administrative branch to the judicial branch must be strictly followed in order to confer jurisdiction on the reviewing court. City of Lubbock v. Bownds, 623 S.W.2d 752, 755 (Tex.App.—Amarillo 1981, no writ) (citing Stanfield v. Texas Dept. of Public Safety, 422 S.W.2d 14, 17 (Tex.Civ.App.—Dallas 1967, writ ref’d n.r.e.)). Appeal of a board’s decision under § 211.011 requires three procedural steps before jurisdiction is conferred on the district court: (1) the petition must be timely filed; (2) the writ of certiorari must be issued and served on the board; and (3) the board must make its return. City of Lubbock, 623 S.W.2d at 755 (discussing Art. lOllg of Tex.Rbv.Civ.Stat.Ann. codified as § 211.011). Appellants failed to have the writ issued, and therefore, failed to invoke the jurisdiction of the trial court.

Appellants argue that even if the issuance of the writ is jurisdictional, § 211.-011 does not require the writ to be issued within any particular time frame. Appellants contend that as long as they met the § 211.011(b) requirement to file their petition within ten days of the appellee’s decision, then they have satisfied any time requirements. Even though § 211.011 does not provide a specific time period for service of the writ, we feel appellants’ interpretation is much too limited.

When we attempt to interpret the meaning and effect of a code, we are assisted by the provisions of the Code Construction Act. Tex.Gov’t Code Ann. § 311.-002 (Vernon 1988). We may consider the object sought to be attained, the consequences of a particular construction, and the common law. Id. at § 311.023(1), (4) & (5). We must presume that the entire statute is intended to be effective, and that a just and reasonable result is intended. Id. at § 311.021(2) & (3). To do this, we must not only look at the provision in question, but we must also look at how it fits into the entire legislative spheme.

A party may not even utilize § 211.011 of the Local Government Code unless it has first brought an appeal to a board of adjustment as provided by § 211.010. See Tex.Local Gov’t Code Ann. § 211.011 (Vernon 1988). Numerous time constraints are found in § 211.010. The appeal must be filed within a reasonable time; the official who made the decision must transmit any papers to the board immediately; the board shall set a reasonable time for the hearing; and the board shall decide the appeal within a reasonable time. Id. § 211.010(b) & (d).

Courts have found delays in bringing an appeal to a board ranging from six to fourteen months unreasonable. See Zoning Bd. of Adjustment v. Graham & Assoc., Inc.,

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Bluebook (online)
853 S.W.2d 650, 1993 Tex. App. LEXIS 821, 1993 WL 81238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-zoning-board-of-adjustment-of-la-porte-texapp-1993.