COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-173-CV
SHERRY GRAY APPELLANT
AND
APPELLEE
V.
TOWN OF WESTLAKE AND TOWN APPELLEES
AND
OF WESTLAKE ZONING BOARD OF APPELLANTS
ADJUSTMENT
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION
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I. Introduction
This
is a summary judgment appeal. Appellant Sherry Gray (“Gray”) challenges the
trial court’s partial summary judgment entered in Appellee Town of
Westlake’s declaratory judgment action decreeing that her property at 2205
North Pearson Lane (“the Property”) is located within the town limits of
Westlake. Gray also challenges the trial court’s denial of her motion for
partial summary judgment seeking a declaration that the Property has never
been properly annexed into Westlake’s town limits. Gray claims the Property
is, and always has been, located in the City of Roanoke. Because this court
recently held in City of Roanoke v. Town of Westlake, 111 S.W.3d 617
(Tex. App.—Fort Worth 2003, pet. filed),
that Westlake’s annexing Ordinance Numbers 237 and 253 are void, the primary
issues we address in this appeal are whether Westlake’s Ordinance Numbers 270
or 289 annexed the Property and whether severance of the declaratory judgment
was proper. We will reverse and render.
II. Factual and
Procedural Background
Gray
owns a dog boarding business that is located within a residential neighborhood
in northeast Tarrant County. Gray’s neighbors, who are residents of Westlake,
initially filed suit in the Town of Westlake Municipal Court to force Gray to
reduce the level of noise coming from the Property. In response to the
neighbors’ criminal complaints against her, Gray filed suit against the
neighbors in Tarrant County district court alleging that her property is not
located within the town limits of Westlake. Westlake intervened in Gray’s
lawsuit, seeking a declaratory judgment that the Property was properly annexed
into Westlake’s town limits and enforcement of two of Westlake’s noise
ordinances.
Both
Gray and Westlake filed competing motions for partial summary judgment on the
issue of whether Gray’s property was annexed into Westlake. Gray’s summary
judgment evidence indicated that her mailing address is 2205 North Pearson Lane,
Roanoke, Texas 76262, and that this address is used by the Town of Keller
to send water utility bills, as well as by other utilities who send her bills.
Gray claims that since she purchased the Property in 1986, her address has
always been Roanoke and that none of her water, sewer, garbage
collection, or other services is or has ever been provided by Westlake.
Westlake, on the other hand, contends that it has provided a full range of
municipal services to the Property. The parties also make conflicting
allegations regarding whether Gray executed a residency affidavit when she voted
in the 1997 Westlake election; the record does not contain the affidavit if it
was executed. Additionally, Westlake alleges that it provided police service to
the Property because it has a contract with Trophy Club’s police department;
however, Gray submitted summary judgment evidence showing that she requested
service from the Tarrant County Sheriff’s Department, and police officers from
Trophy Club responded at the sheriff’s request. Moreover, Westlake’s
evidence implies that Gray’s filing of zoning applications with Westlake is an
admission that she is a resident of Westlake; Gray alleges that she was
threatened by Westlake with a lawsuit if she did not file an application even
though she contended that her Property was not in Westlake. Furthermore,
Westlake relies on the fact that Gray collects a Westlake sales tax to allege
that the Property is in its town limits, but Gray refutes this allegation by
stating that Westlake provided the Comptroller’s Office with incomplete
information that the office used to make its determination relating to her sales
tax.
The
parties argue the application of four ordinances regarding the annexation of the
Property. Ordinance Number 237,
which was approved in March 1995, erroneously included the Property in the
description of Westlake’s boundaries. Ordinance Number 253, which was approved
in May 1996, also erroneously included the Property in the description of
Westlake’s boundaries. In March 1997, the Westlake Board of Aldermen voted to
approve Ordinance Number 270 in order to correct the errors shown on the 1995
and 1996 maps, and this corrective ordinance does not include the Property
within the corporate limits of Westlake. In May 1997, the Board of Aldermen
adopted Ordinance Number 289, reaffirming that the town boundary map adopted by
Ordinance Number 253 is the official map of the town of Westlake and declaring
null and void prior attempted disannexations.
Based
on this summary judgment evidence, the trial court denied Gray’s motion for
partial summary judgment and granted Westlake’s motion for partial summary
judgment. Gray filed a motion for severance, requesting that the declaratory
judgment action be severed and that the summary judgment order be made final for
purpose of appeal, and the trial court granted the severance. Thereafter, Gray
initiated an appeal of the partial summary judgment rulings, and Westlake
initiated an appeal on the issue of the trial court’s severance of the
declaratory judgment from the remainder of the claims in the lawsuit.
III. Standard
of Review
In
a summary judgment case, the issue on appeal is whether the movant met his
summary judgment burden by establishing that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); S.W. Elec.
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Summary judgment
is proper when parties do not dispute the relevant facts. Havlen v. McDougall,
22 S.W.3d 343, 345 (Tex. 2000).
A
defendant is entitled to summary judgment on an affirmative defense if the
defendant conclusively proves all the elements of the affirmative defense. KPMG
Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.
1999). To accomplish this, the defendant-movant must present summary judgment
evidence that establishes each element of the affirmative defense as a matter of
law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).
When
both parties move for summary judgment and the trial court grants one motion and
denies the other, the reviewing court should review both parties’ summary
judgment evidence and determine all questions presented. Dow Chem. Corp. v.
Bright, 89 S.W.3d 602, 605 (Tex. 2002). The reviewing court should render
the judgment that the trial court should have rendered. Id.
When a trial court’s order granting summary judgment does not specify the
ground or grounds relied on for its ruling, summary judgment will be affirmed on
appeal if any of the theories advanced are meritorious. Star-Telegram, Inc.
v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Harwell v. State Farm Mut. Auto.
Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).
IV. Standing
and Statute of Limitations
In
its initial brief, Westlake contends that Gray lacked standing to collaterally
attack its ordinances and that her challenges to the ordinances were not timely
filed. In light of our subsequent holding in City of Roanoke, that
Westlake’s Ordinance Numbers 237 and 253 are void, Westlake filed a
post-submission brief shifting its focus in this appeal to Ordinance Number 289
and asserting that ordinance properly annexed the Property. City of Roanoke,
111 S.W.3d at 638. Although in City of Roanoke we rejected the same
limitations arguments Westlake raises here, we nonetheless briefly address them
to show that those holdings are equally applicable in this case.
Westlake
first argues that Gray did not have standing to bring a cause of action based on
Ordinance Numbers 237 and 253 because annexation challenges must be brought as a
quo warranto proceeding. A collateral attack to a void ordinance,
however, may be brought at any time. City of Willow Park v. Bryant, 763
S.W.2d 506, 508 (Tex. App.—Fort Worth 1988, no writ). Because Gray challenged
the ordinances as being void, she had standing to bring a private cause of
action against Westlake. See id.
Westlake
also contends that Gray did not file suit within the limitations periods
specified in the Texas Local Government Code and the Texas Civil Practice and
Remedies Code. Tex. Civ. Prac. & Rem.
Code Ann. § 16.051 (Vernon 1997);
Tex. Loc. Gov’t Code Ann. §§ 43.901, 51.003(a) (Vernon Supp. 2003).
Section 43.901 of the Texas Local Government Code provides that consent to a
municipal ordinance is presumed if an action to annul or review the ordinance is
not initiated within two years of the date of the adoption of the ordinance. Tex. Loc. Gov’t Code Ann. § 43.901.
Section 51.003 of the Texas Local Government Code provides that a governmental
act of a municipality is conclusively presumed as of the date it occurred if a
lawsuit to annul or invalidate the act is not brought within three years of its
effective date. Tex. Loc. Gov’t Code
Ann. § 51.003(a). Section 16.051 of the Texas Civil Practice and
Remedies Code provides a four-year statute of limitations period for actions to
annul an ordinance. Tex. Civ. Prac. &
Rem. Code Ann. § 16.051.
Here,
Gray’s failure to timely file her complaint and alleged implied consent to the
ordinances purportedly annexing the Property is irrelevant because the City of
Roanoke timely brought suit successfully challenging the same
ordinances—Ordinance Numbers 237 and 253—and successfully contesting the
boundaries maps these ordinances approved. See City of Roanoke, 111
S.W.3d at 638 (holding Ordinance Numbers 237 and 253 void). Moreover, this case
is distinguishable from City of Murphy v. City of Parker, which held that
a void ordinance could not be successfully challenged where consent was presumed
due to the expiration of the statute of limitations, because in this case
another party—City of Roanoke—timely challenged the validity of the
ordinances. 932 S.W.2d 479, 482 (Tex. 1996). Therefore, Westlake’s limitations
arguments fail in light of our holding in City of Roanoke.V. Void
Ordinances Do Not Annex the Property
Westlake’s
Ordinance Numbers 237 and 253, which included the Property within Westlake’s
town limits, are void. City of Roanoke, 111 S.W.3d at 638. Westlake
argues that the trial court’s summary judgment was nonetheless proper because
(1) Ordinance Number 289 has the effect of annexing back into the town all
property that had previously been annexed through the adoption of the now void
ordinances and (2) Gray did not challenge Ordinance Number 289 in the trial
court. However, as noted above, Ordinance Number 289 adopts the boundaries map
generated in connection with void Ordinance Number 253. Ordinance Number 289,
readopting void Ordinance Number 253's map boundaries, is likewise void because
it attempts to “annex” property within the City of Roanoke’s
extraterritorial jurisdiction to which City of Roanoke did not consent. See
City of Roanoke, 111 S.W.3d at 622 n.5, 633 n.15, 638 (holding Ordinance
Numbers 237 and 253, which adopted the official map drawn in connection with
void Ordinance Number 237, likewise void).
The
ordinances relied upon by Westlake as annexing the Property, including Ordinance
Number 289, are void. Thus, the trial court erred by granting partial summary
judgment in Westlake’s declaratory judgment action and by declaring that the
Property was properly annexed into Westlake. Because the ordinances purportedly
annexing the Property are void as a matter of law, the trial court erred by not
granting her motion for partial summary judgment.
Westlake
argues that Gray did not challenge Ordinance Number 289 in the trial court;
therefore, she is not entitled to summary judgment. Westlake, however, did place
Ordinance Number 289 at issue as an alternative ground for affirming the trial
court’s summary judgment, and Gray at least mentioned Ordinance Number 289 in
the trial court. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623,
626 (Tex. 1996) (holding that appellate court may consider alternate grounds
that the movant preserved for review). We have held that Ordinance Number 289 is
void. Consequently, Gray’s consent or lack thereof is irrelevant because the
municipality (City of Roanoke) did not agree to the annexation under Texas Local
Government Code section 43.901, and Texas Local Government Code section 51.003
does not apply to void actions. Tex. Loc.
Gov’t Code Ann. §§ 43.901, 51.003. Accordingly, Ordinance Number 289
does not entitle Westlake to summary judgment nor preclude summary judgment for
Gray.
VI. Severance
was
Proper
In
a cross-point, Westlake argues that the trial court erred by severing the
declaratory judgment actions from the suit involving Gray and her neighbors
because the requirements for severance were not met. A trial court has broad
discretion in deciding whether to sever. Guar. Fed. Sav. Bank v. Horseshoe
Operating Co., 793 S.W.2d 652, 658 (Tex. 1990) (op. on reh’g). Severance
is proper when (1) the controversy involves more than one cause of action, (2)
the severed claim is one that would be the proper subject of a lawsuit if
independently asserted, and (3) the severed claim is not so interwoven with the
remaining action that it involves the same facts and issues. Id. We will
reverse a trial court’s determination regarding severance only if we find an
abuse of discretion. Id.
In
this case, Gray’s suit involves more than one cause of action (e.g.,
malicious prosecution, abuse of process, civil conspiracy, violation of an
ordinance, and declaratory judgment); the claims against Westlake would be the
proper subject of a suit if independently asserted; and the declaratory judgment
actions are not so interwoven with the remaining actions that they involve the
same facts and issues. We hold that the trial court did not abuse its discretion
in severing the declaratory judgment actions. Cf. In re Koehn, 86 S.W.3d
363, 369 (Tex. App.—Texarkana 2002, no pet.) (providing an example of when
severance is mandatory). We overrule Westlake’s cross-point.
VII. Conclusion
Having
held that the trial court erred by granting Westlake’s motion for partial
summary judgment and by denying Gray’s motion for partial summary judgment, we
reverse the trial court’s partial summary judgment for Westlake and render
partial summary judgment for Gray, declaring that Gray’s Property is not
located within the town limits of Westlake.
SUE
WALKER
JUSTICE
PANEL
B: HOLMAN, GARDNER, and WALKER, JJ.
DELIVERED: October 16, 2003