City of Coppell v. General Homes Corp.

• Decision Date: 23 November 1988
• Docket Number: No. 05-87-01392-CV,05-87-01392-CV
• Citation: 763 S.W.2d 448
• Parties: CITY OF COPPELL, Texas, Appellant, v. GENERAL HOMES CORPORATION, Appellee,
• Court: Texas Court of Appeals

Page 448

763 S.W.2d 448

CITY OF COPPELL, Texas, Appellant, v. GENERAL HOMES CORPORATION, Appellee,

No. 05-87-01392-CV.

Court of Appeals of Texas,

Dallas.

Nov. 23, 1988.

Rehearing Denied Dec. 30, 1988.

Lawrence W. Jackson, Dallas, Mike A. Hatchell, Tyler, for appellant.

Dan S. Boyd, Robert R. Gibbons, Dallas, for appellee.

Before STEPHENS, STEWART and ROWE, JJ.

ROWE, Justice.

Appellee, General Homes Corporation, sued appellant, City of Coppell, Texas, to recoup certain water and sewer fees collected by Coppell. The trial court entered summary judgment against Coppell for $283,000.00 monetary damages, $36,147.76 prejudgment interest, and $70,000.00 attorney fees. The trial court also granted a declaratory judgment that the fees as charged to General Homes violated Texas statutes, Texas common law, and General Homes' vested rights. In four points of error, Coppell argues that the trial court erred: (1) by rendering summary judgment against Coppell for the fees; (2) by declaring that the fees as charged to General Homes violated Texas statutes, Texas common law, and General Homes' vested rights; (3) by rendering judgment against Coppell for attorney fees because the City is exempt from such awards; and (4) by assessing prejudgment interest against Coppell because the City is exempt from such awards. For the reasons given below, we overrule all of Coppell's points of error and affirm the trial court's judgment.

Background

In the 1970s, portions of land within Coppell's corporate limits were largely undeveloped and had no organized water or sewer service. Anticipating development of this land, Coppell consented to the creation of Coppell Municipal Utilities District No. 1 ("CMUD"). CMUD had authority to construct, own, operate, and maintain all equipment helpful or necessary to supply water and to dispose of wastes within the district. TEX.WATER CODE ANN. § 54.201(b)(1) & (2) (Vernon 1972). The area serviced by CMUD was wholly within Coppell's corporate limits. After CMUD's creation, Coppell continued to operate its own water and sewer system.

In the early 1980s, General Homes began to develop certain property in CMUD. The planned development included two residential subdivisions containing 673 homes. Under an agreement with CMUD, General Homes constructed mains and service lines connecting to CMUD's water distribution system. By this time CMUD's water distribution system was integrated with Coppell's waterworks system. Water purchased from the City of Dallas flowed through Coppell's system into CMUD's water distribution system and then through the service lines to the residences built by General Homes.

General Homes also built service lines and mains to carry the sewage from the residences to CMUD's sewer collection system. The waste then emptied into CMUD's sewer trunk main and was transported to the Trinity River Authority for disposal. Except for twenty-four homes, none of the sewage from the development would ever pass through a Coppell-owned sewer pipe. With respect to twenty-four homes, however, sewage would pass through a ten-inch Coppell sewer main before emptying into CMUD's sewer trunk main. Coppell had previously agreed that in exchange for the right to connect to CMUD's sewer trunk main, CMUD users could connect to the ten-inch main.

Beginning in May of 1984, Coppell began to collect from General Homes sewer tap, water tap, and water meter fees. General Homes complained to Coppell but paid such fees under protest. In July of 1985, Coppell began to collect water availability and utility inspection fees. Again, General Homes complained but paid such fees under protest.

After exhausting its avenues of relief from Coppell's administration, General Homes sued Coppell to recover $283,000.00 of fees paid and to obtain a declaratory judgment that the fees "violate the Texas Constitution, Texas statutes, and Texas common law, violate General Homes' vested rights, are not authorized by law, are for services not provided by Coppell, and are unreasonable." Following discovery, General Homes moved for summary judgment, and the trial court granted its motion.

Summary Judgment

In its first two points of error, Coppell complains that the trial court erred in granting summary judgment against Coppell and in declaring that the fees as charged violate Texas statutes, Texas common law, and General Homes' vested rights. Because Coppell has briefed and argued these two points together, we consider them together.

In our review of a summary judgment, we are constrained to follow the standards set forth in Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex.1985). These standards are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and doubts resolved in its favor.

690 S.W.2d at 548-49. Coppell correctly contends, however, that in granting summary judgment the trial court was confined to the specific grounds set forth in General Homes' motion. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979); Vendig v. Traylor, 604 S.W.2d 424, 430 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.); TEX.R.CIV.P. 166a(c). In its motion, General Homes argued that it was entitled to judgment as a matter of law because:

A. Coppell assessed and collected "fees" from General Homes for which Coppell had no constitutional or statutory authority.

B. Coppell assessed and collected "fees" from General Homes for services that it did not provide.

C. Coppell assessed and collected "fees" from General Homes that relate to property that the Coppell Municipal Utility District No. 1 (the "CMUD") owns and not Coppell.

D. Coppell assessed and collected "fees" from General Homes for services already provided by the CMUD and for which the CMUD already charged and collected fees from General Homes.

Because the trial court did not state the grounds upon which it granted summary judgment, Coppell must show that each of the independent arguments alleged in the motion fails to support the judgment. Netterville v. Interfirst Bank, 718 S.W.2d 921, 922 (Tex.App.--Beaumont 1986, no writ); McCrea v. Cubilla Condominium Corp., 685 S.W.2d 755, 757 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.); Southerland v. Northeast Datsun, Inc., 659 S.W.2d 889, 891 (Tex.App.--El Paso 1983, no writ); see Thomson v. Norton, 604 S.W.2d 473, 476-77 (Tex.Civ.App.--Dallas 1980, no writ).

Timeliness of Pleading and Response

Before addressing the merits of Coppell's contentions, we must first examine another issue raised by General Homes. In its first counterpoint, General Homes asserts that the trial court did not err in rendering summary judgment because Coppell had no timely filed pleading, response, or summary judgment evidence on file at the time of the hearing. General Homes suggests that we can affirm the summary judgment on this basis alone. We disagree. A summary judgment must stand on its own merits, and the nonmovant's failure to respond cannot supply by default the proof necessary to establish the movant's right. City of Houston, 589 S.W.2d at 678. Although we cannot affirm the judgment if we sustain General Homes' first counterpoint, we may be required to ignore Coppell's summary judgment evidence if it was untimely filed. Accordingly, we must consider that issue further.

Coppell filed its second amended answer, its brief opposing the motion for summary judgment, and several affidavits on August 17, 1987. The hearing took place on August 24, 1987. General Homes argues that Texas Rule of Civil Procedure 166a requires a full seven days between the filing and the hearing and that therefore Coppell's filing was untimely. On the other hand, Coppell argues that filing on the seventh day before the hearing satisfies the rule. Citing Volvo Petroleum, Inc. v. Getty Oil Co., 717 S.W.2d 134, 138 (Tex.App.--Houston [14th Dist.] 1986, no writ). However, because General Homes did not file a motion to strike these documents and the trial court did not strike them sua sponte, General Homes has failed to preserve this complaint and may not now contend that these documents were not properly before the trial court. Brooks Fashion Stores, Inc. v. Northpark Nat'l Bank, 689 S.W.2d 937, 940 (Tex.App.--Dallas 1985, no writ); see TEX.R.APP.P. 52(a). Accordingly, we overrule this counterpoint.

The Fee Ordinances

In support of the summary judgment, General Homes first argues that Coppell never passed any ordinances authorizing Coppell to assess or collect the disputed fees from General Homes. General Homes contends that in the absence of any enabling ordinances, Coppell's collection of the fees violated Texas law. In response, Coppell points to four of its written ordinances, an administrative decision, and a fee schedule adopted by the City Council. Coppell claims that these are the sources of its authority to collect the disputed fees from General Homes.

A municipality may purchase, construct, and operate a water system and may regulate such systems in a manner that protects the interests of the municipality. TEX. LOCAL GOV'T CODE ANN. § 402.001 (Vernon 1988). The only way a municipality can exercise this power or any other power is by and through its governing body acting in its official capacity. See Cook v. City of Addison, 656 S.W.2d 650, 657 (Tex.App.--Dallas 1983, writ ref'd n.r.e.); Stirman v. City of Tyler, 443 S.W.2d 354, 358 (Tex.Civ.App.--Tyler 1969, writ ref'd n.r.e.). The governing body of a municipality acts in its official capacity only by passing an ordinance or resolution. See City of San Antonio v. Micklejohn, 89 Tex. 79, 81-82, 33 S.W. 735, 736 (1895); Stirman, 443 S.W.2d at 358; City...