Air Park-Dallas Etc. v. Crow Billingsley

• Citation: 109 S.W.3d 900
• Decision Date: 16 July 2003
• Docket Number: No. 05-01-01689-CV.,05-01-01689-CV.
• Parties: AIR PARK-DALLAS ZONING COM-MITTEE, Appellant/Cross-Appellee, v. CROW-BILLINGSLEY AIRPARK, LTD., Crow-Billingsley Berkeley, Ltd., Henry Billingsley, Lucy Billingsley, Appellees/Cross-Appellants.
• Court: Texas Court of Appeals

109 S.W.3d 900

AIR PARK-DALLAS ZONING COM-MITTEE, Appellant/Cross-Appellee, v. CROW-BILLINGSLEY AIRPARK, LTD., Crow-Billingsley Berkeley, Ltd., Henry Billingsley, Lucy Billingsley, Appellees/Cross-Appellants.

No. 05-01-01689-CV.

Court of Appeals of Texas, Dallas.

July 16, 2003.

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David W. Elrod, Barbar L. Wohlrabe and Elizabeth L. Reding, Rochelle, Elrod, Hutcheson, LLP, Dallas, for Appellant.

Tod B. Edel and Christopher John Akin, Carrington Coleman, Sloman & Blumenthal, L.L.P., Dallas, for Appellee.

Before Justices WHITTINGTON, RICHTER and MALONEY.¹

OPINION

Opinion By Justice RICHTER.

The issues in this case surround the interpretation and application of certain restrictive covenants that appertain to all individual lots in a special use subdivision, namely a residential airpark. The cause was tried to the court below without a jury, and both parties appeal. The issues presented by both parties require this court to resolve jurisdictional questions, interpret the restrictive covenants at issue, resolve questions of statutory damages and usury, and decide issues concerning attorneys' fees. We affirm in part, and reverse and render in part.

I. Background

Air Park-Dallas began in 1969, when Milton and Henry Noell decided to create a residential airpark for "people who like to fly airplanes" on their property in southwestern Collin County. As the north Dallas area grew over time, the population spilled over into southern Collin County. The rapid growth in the area north of Dallas, including the situs of Airpark, was that of affluent residential subdivisions and strategically placed commercial centers.

As a consequence, wealthy developers began to eye the jewel of the partially developed Air Park-Dallas for investment purposes. Ultimately in 1983, investors Henry and Lucy Billingsley persuaded Milton Noell to sell one half of his interest in Air Park-Dallas, including one half of an undivided interest in all of the common areas, for three million dollars. The earlier plan to further develop the community as a residential airpark was abandoned. It is undisputed that the Billingsleys purchased their interest solely for investment purposes. There is evidence in the record that Henry Billingsley would turn much of the subdivision, including the runway, into a commercial area if he could unilaterally make that decision. However, before the Billingsley sale, several aviators purchased lots in the subdivision.

To facilitate the Noells' earlier goal of a residential airpark, each individual lot carries certain restrictive covenants that run with the land. These covenants purport to retain the residential airpark character of the community and provide for a zoning committee to govern land use in the subdivision. It is against this backdrop that we find the battle lines drawn between the investors and the aviator residents of the subdivision.

After Henry and Lucy Billingsley's initial purchase from Milton Noell, the Billingsleys formed two Billingsley partnership entities, Crow-Billingsley Airpark, Ltd. and Crow-Billingsley Berkeley, Ltd., which are parties before the Court. In 1984, 1985 and 1986, eight of Henry Billingsley's lots were transferred to Crow-Billingsley Berkeley, LTD. Crow-Billingsley Airpark, LTD is the operational partnership that directs the day-to-day activities of the partnership property. The partnership interests are aligned with the individual Billingsley parties, and therefore all will be collectively referred to as the "Billingsley Parties." Since the Billingsley initial purchase in 1983, the Billingsley parties have acquired additional lots as they have become available. Out of a total of 68 residential lots, the Billingsley Parties own 32 lots. They also own three business lots near the runway.

II. Jurisdiction

As a preliminary matter, the Billingsley Parties assert that this Court does not have jurisdiction to consider this appeal. The Air Park-Dallas Zoning Committee ("Zoning Committee") addresses this contention in its first issue.

Facts

After the case was tried to the court, judgment was entered on July 23, 2001. Trial counsel for the Zoning Committee filed a motion to withdraw as attorney of record, which was granted on July 25, 2001. Thereafter, the law firm ROCHELLE ELROD HUTCHESON, LLP ("REH") filed a motion for new trial on August 22, 2001, on behalf of the Zoning Committee. REH was purportedly retained to handle the appeal. The Billingsley Parties filed a Rule 12 motion for the new attorneys to show they had authority to represent the Zoning Committee. TEX.R. CIV. P. 12. A two-day evidentiary hearing was held and the court concluded that REH had not met its burden of proof to show proper authority. On October 2, 2001, the court signed an order ruling that REH could not appear on behalf of the Zoning Committee and ordered all pleadings filed by REH, including the motion for new trial, stricken from the record. The effect of striking the motion for new trial rendered the Zoning Committee's October 22, 2001, notice of appeal being filed more than 30 days after judgment was entered and, therefore, untimely. If the motion for new trial had not been stricken, the notice of appeal would have been timely.

Applicable Law

Generally, a notice of appeal must be filed within 30 days after the judgment is signed to be considered timely. TEX. R.App. P. 26.1. If a motion for new trial is timely filed, the notice of appeal must be filed within 90 days after the judgment is signed. TEX.R.APP. P. 26.1(a)(1).

Any party may file a motion to show authority. TEX.R. CIV. P. 12. The challenged attorney has the burden of proof to show sufficient authority to represent the client. Id. If sufficient authority is not shown, the attorney is not permitted to appear in the cause. Id. Further, if no authorized person appears, the court shall strike the pleadings on file. Id.

Application of Law to Facts

Rule 12 provides that the motion may be heard at any time before the parties have announced ready for trial. Id. Although Rule 12 does not specifically contemplate the situation here — where a new attorney appears after trial to file a motion for new trial — case law supports the proposition that a Rule 12 motion may be considered at the first available opportunity after new or different counsel attempts to appear as attorney of record. See Angelina County v. McFarland, 374 S.W.2d 417, 423 (Tex.1964) (Rule 12 applies to challenges in the trial court or the court in which the action² is commenced); Sloan v. Rivers, 693 S.W.2d 782, 784 (Tex.App.-Ft. Worth 1985, no writ) (Rule 12 properly considered in appellate court where case is an original proceeding). The purpose behind enactment of the rule also weighs in favor of allowing Rule 12 challenges as soon as practicable after new or different counsel attempts to appear in a case. "[T]he rule's purpose is to discourage and cause dismissal of suits brought without authority...." Sloan, 693 S.W.2d at 784; see also Mobile Homes of Am., Inc. v. Easy Living, Inc., 527 S.W.2d 847, 848 (Tex.Civ.App.-Ft. Worth 1975, no writ).

The Billingsley Parties assert that the case Rodriguez v. Texas Farmers Insurance Co. is factually analogous to the instant case. 903 S.W.2d 499 (Tex.App.-Amarillo 1995, writ denied). The Zoning Committee correctly points out that the factually analogous portions of that opinion were not necessary to the resolution of that case and were, therefore, dicta. Accordingly, that part of Rodriquez has no binding precedential value. E.g., Lester v. First Am. Bank, 866 S.W.2d 361, 363 (Tex. App.-Waco 1993, writ denied) (discussing stare decisis and dicta). However, we do believe that opinion is instructive as to what at least one Texas trial court has done when confronted with the same issue as presented in this case. In Rodriquez, the plaintiff Ortegas obtained a default judgment against the defendant Rodriquezes. 903 S.W.2d at 502. Thereafter, pursuant to a policy of insurance, an insurance company provided counsel to the Rodriquezes and instructed counsel to file an answer and a motion for new trial. Id. The attorney filed the answer, but refused to file the motion for new trial asserting that it was not in the Rodriquezes' best interests.³ Id. Thereafter, the insurance company provided another counsel and, at its request, filed a motion for new trial. Id. The Ortegas' attorney, armed with affidavits of the Rodriquezes, filed a Rule 12 motion. Id. The trial court granted the Rule 12 motion and struck the motion for new trial. Id. Although the insurance company initially appealed this determination, it later abandoned that appeal. Id. at 502 n. 3.

As the court in Sloan v. Rivers stated: "As would be expected from the very nature of [Rule 12], there has not been developed a large body of precedent as to the application of it's provisions." 693 S.W.2d at 784. Finally, concerning when the motion can be heard, we note Rule 12 uses the permissive "may," as opposed to the mandatory "shall" language. See TEX. Gov'T CODE ANN. § 311.016(1) (Vernon 1998). "The motion may be heard and determined at any time before the parties have announced ready for trial...." TEX.R. CIV. P. 12 (emphasis added).

In accordance with the foregoing, we conclude that a Rule 12 motion may be properly brought when a new and different attorney attempts to appear as attorney of record purporting to advance a motion for new trial after the trial has concluded.

Our resolution of this issue does not offend the mandate contained in Rule 12 that the trial shall not be unnecessarily delayed or continued for the hearing on the Rule 12 motion. Id.

We review the trial court's granting of a Rule 12 motion for abuse of discretion. City of San Antonio v. River City Cabaret, Ltd., 32 S.W.3d 291, 293 (Tex. App.-San Antonio 2000, pet. denied). But see State v. Evangelical Lutheran Good Samaritan Soc'y, 981...