City of Arlington v. Bardin

• Decision Date: 11 February 1972
• Docket Number: No. 17275,17275
• Citation: 478 S.W.2d 182
• Parties: CITY OF ARLINGTON v. William P. BARDIN et al.
• Court: Texas Court of Appeals

Page 182

478 S.W.2d 182

CITY OF ARLINGTON v. William P. BARDIN et al.

No. 17275.

Court of Civil Appeals of Texas,

Fort Worth.

Feb. 11, 1972.

Rehearing Denied March 10, 1972.

Saner, Jack, Sallinger & Nichols, and H. Louis Nichols, Dallas, and Stanley Wilkes, Jr., City Atty., Arlington, for appellant.

McKool, McKool, Jones, Shoemaker & Turley, and Bill Jones and Edward D. Vassallo, Jr., Dallas, for appellees.

OPINION

LANGDON, Justice.

The appellees, William P. Bardin, et al., filed suit against the appellant, City of Arlington, Texas, for specific performance of a contract to require it to reconvey to them 21.76 acres of land out of a 68.31 acre tract which appellant had previously purchased from appellees. The appellant denied the appellees' right to specific performance and in the alternative, filed a cross-action to condemn the 21.76 acres which was described by metes and bounds in the appellant's cross-action. The trial court required separate trials of appellees' action and the appellant's cross-action. Each was tried before a jury.

In the appellees' action the jury found that on October 10, 1968, the appellant (1) was not operating a municipal airport on the 21.76 acres in question; (2) had abandoned the 21.76 acres as a part of its municipal airport; and (3) had determined that the 21.76 acres in dispute were not needed for the operation of its municipal airport. Based upon the above verdict an interlocutory judgment was entered ordering the appellant to reconvey '21.74 acres of land, more or less', to the appellees and the District Clerk was ordered to pay to appellant the sum of $8,696.00 (representing $400.00 per acre for 21.74 acres) out of funds deposited by appellees.

In the trial of the cross-action the jury found that (1) the taking of the 21.74 acres '. . . is not for a public use'; (2) such taking '. . . is arbitrary or capricious'; and (3) the 21.74 acres of land has a market value of $98,000.00. At this point the trial court sustained the City's motion to disregard findings (1) and (2) above described. The court then set aside the interlocutory judgment it had previously entered in the appellees' action and entered judgment vesting fee title to the '21.74 acres of land, more or less' (same metes and bounds description as contained in the interlocutory judgment) in the appellant, City, ordering payment by the appellees of $8,704.00 (representing $400.00 per acre for 21.76 acres) to the appellant and allowing the appellees to recover the sum of $98,000.00 from the City, based upon the jury finding No. 3 above described. The appellant's motion to disregard the jury's answers to certain issues on the first trial and motion for judgment non obstante veredicto in connection with appellees' suit were overruled as was appellant's amended motion for new trial. The appellant has perfected its appeal based upon eleven points of error and the appellees' their cross-appeal based upon a single point of error.

We affirm in part and reverse and render in part.

In order to clarify the issues involved on these appeals the matters and events deemed pertinent are set forth in chronological order in the paragraphs next following. All emphasis by underscoring is ours.

July 30, 1960--William P. Bardin, et al., as sellers, and the City of Arlington, as purchaser, executed a contract whereby the sellers agreed to sell to the purchaser two tracts of land described by metes and bounds and consisting of a total of 68.31 acres. Following the usual recitations the following language appears beginning on page 2 of the contract:

'This conveyance, however, is subject to the following special conditions which shall survive the signing of the deed:

'1.

'. . . If, at any time prior to the expiration of said eight years, said airport, after having been constructed, maintained and operated for some period of time, is abandoned as an airport, the sellers' preferential right to purchase at $400.00 per acre shall immediately arise and they, their successors or assigns, at their option, shall have the right to such reconveyance for said consideration of $400.00 per acre.

'In this same connection, if, at any time during the said eight year period, the purchaser or its successors or assigns shall determine that all or any part of the land included in this deed is not needed for the operation of a municipal airport, then the sellers shall be entitled, at their option, to a reconveyance of said parts or portions at the price of $400.00 per acre. Each and all of the provisions hereof pertaining to said reconveyance and preferential right to buy at sellers' option shall be and remain in covenants running with the land binding upon the successors and assigns of the purchaser.

'Whenever any right to repurchase shall arise in the future, and, in the event said arise in the future, and, in the event said right is exercised, the reconveyance shall be by warranty deed free and clear of any liens and incumbrances to which the land is not subject at the time of the original conveyance from sellers to purchaser (easements and rights held by public utilities excepted); and sellers reserve the right to apply all or a part of the repurchase price to the payment or retirement of any such liens or incumbrance.

'When the preferential right to repurchase and right of reconveyance herein referred to shall arise in the future, sellers their successors or assigns shall exercise their option to repurchase within six (6) months after such preferential right arises . . ..' (The period of eight years begins on July 30, 1960, the date of the contract.)

September 20, 1960--Resolution No. 1789 was passed authorizing the 'MAYOR AND CITY SECRETARY TO EXECUTE ON BEHALF OF THE CITY OF ARLINGTON THAT CERTAIN PURCHASE CONTRACT DATED JULY 30, 1960, IN WHICH THE CITY OF ARLINGTON AGREES TO PURCHASE CERTAIN PROPERTY IN THE W. D. LACY SURVEY, TARRANT COUNTY, TEXAS, FROM W. P. BARDIN, ET AL.

'BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ARLINGTON, TEXAS:

'. . . the Original copy of said contract being attached hereto and made a part hereof for all intents and purposes, be, and they are hereby in all things accepted and approved and the Mayor of City of Arlington is hereby authorized to execute said purchase contract for and on behalf of the City of Arlington and the City Secretary is authorized and directed to attest to same and place the corporate seal thereon.'

October 10, 1960--William P. Bardin, et al., executed a deed conveying the two tracts of land, consisting of 68.31 acres described in the July 30, 1960, contract of sale, to the City of Arlington, for and in consideration of the sum of $27,324.00, pursuant to the terms of said contract of sale.

It is undisputed that thereafter the airport was constructed, maintained and operated for some period of time on the land above described together with other land acquired for such purpose by the appellant.

March 21, 1967--Resolution No. 2838 was passed by the City of Arlington authorizing the Mayor and City Secretary to execute an agreement for the lease of 53.98 acres at the Arlington Municipal Airport to Bell Helicopter Company. The Resolution contained, among other recitations, the following:

'WHEREAS, the City Council of the City of Arlington owns and operates an airport facility known as the Arlington Municipal Airport; and,

'WHEREAS, there is described on the Master Plan of development of said airport a 53.98 acre 'industrial site'; and,

'WHEREAS, Said City Council has determined and does hereby find that by reason of the location, configuration and other material considerations regarding said site, the same is not essential to the aviation needs of said airport; and further, has made application to the Federal Aviation Agency for a concurrence in such finding; and,

'WHEREAS, said City Council is of the opinion that the establishment of a substantial aviation industrial development on said site is compatible with and beneficial to the operation of an airport adjacent thereto, Said City Council therefore, concludes that the industrial site herein described should be severed from the Arlington Municipal Airport, and the City Council hereby finds and declares that the needs of the City in providing facilities incidental to the Airport do not require such use of the industrial site, and that it is therefore to the best interest of the City of Arlington that said property be leased for an aviation industrial use. Pursuant to the findings and determinations herein contained, NOW THEREFORE,

'BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ARLINGTON, TEXAS:

'THAT the Mayor of the City of Arlington is hereby authorized to execute a lease agreement providing the following: . . .'

April 20, 1967--On this date the appellant executed a 99 year lease of the 53.98 acres to Bell Aerospace Corporation, through its division Bell Helicopter Company, pursuant to the terms of Resolution No. 2838, passed on March 21, 1967.

May 30, 1967--The appellees wrote a letter to the Mayor of the City of Arlington designating copies thereof to the City Manager and to the City Secretary. The letter, signed by William P. Bardin et al., appellees, reads as follows: 'On July 30, 1960 a contract was entered into a by and between William P. Bardin and wife, Joyce B. Bardin; Jesse Carroll Bardin and wife, Ona Faye Bardin; Janie Bardin Hill and husband, Lewis E. Hill, as Sellers, and the City of Arlington, as Purchaser, covering a tract of 34.24 acres and 34.07 acres out of the W. D. Lacy Survey, Tarrant County, Texas. This contract was later partially consummated by the conveyance of the land covered to the City of Arlington by the Sellers.

'We are informed the City of Arlington has determined that approximately 22 acres of the land covered by the contract dated July 30, 1960 is not needed for the operation of a municipal airport and that such 22 acres is not now covered by a subsisting Certificate of Authority or...