City of Lubbock v. Stubbs

• Decision Date: 08 July 1959
• Docket Number: No. A-7238,A-7238
• Citation: 160 Tex. 111,327 S.W.2d 411
• Parties: CITY OF LUBBOCK, Petitioner, v. Roger Q. STUBBS, Respondent.
• Court: Texas Supreme Court

Page 411

327 S.W.2d 411

160 Tex. 111

CITY OF LUBBOCK, Petitioner, v. Roger Q. STUBBS, Respondent.

No. A-7238.

Supreme Court of Texas.

July 8, 1959.

Rehearing Denied Oct. 7, 1959.

Vaughn E. Wilson, City Atty., and Fred O. Senter, Jr., Asst. City Atty., Lubbock, for petitioner.

Campbell & Brock, Lubbock, for respondent.

SMITH, Justice.

In this suit, instituted by the City of Lubbock against Roger Q. Stubbs, and trial court granted a temporary injunction restraining and enjoining Stubbs from further additional use of his property and from using such property in violation of a comprehensive ordinance adopted by the City of Lubbock, Texas, in April 1955. On appeal to the Court of Civil Appeals at Amarillo, that court reversed the judgment of the trial court, dissolved the temporary injunction, and directed the trial court to dismiss the case. 320 S.W.2d 712. The Court of Civil Appeals, by such action, sustained Stubbs in his contention that the judgment rendered in a prior suit and made final by judgment of the Court of Civil Appeals, between the same parties, involving the same issues, is res judicata of the present suit. We have concluded that the issue involved in the present suit was not determined and adjudicated in the former suit. Therefore, the City of Lubbock is not estopped by judgment from litigating the issues involved in the present suit.

The material facts and the issues involved in the two suits are these: In the first suit, the city sought to enjoin Stubbs from violating Zoning Ordinance No. 661. Evidence was introduced. The court filed findings of fact and conclusions of law. Ordinance No. 661 was in effect at the time Stubbs' property was annexed to the city. At the time of the annexation, and long prior thereto, Stubbs' property was devoted to commercial or business use. The trial court, in the former suit, found that the zoning ordinance, supra, automatically placed the Stubbs' property in an 'A' zone for residence use and improvement only, and that the city did not rezone the property after annexation and would not permit improvements of said property for business use. The court found that at the time of the trial Stubbs' home was situated upon said property, and was being used and occupied by him in the operation of his business; that at the time of the annexation, and at the time of the trial, there was upon the property a 'grocery store, a lumber yard, plaining mill, silo and grainery, and one or more small houses built and set on blocks for sale and removal.' The judgment of the trial court, to the effect that Stubbs was using his property in the same manner as he was using it when the land was annexed by the city, and that the zoning ordinance was an arbitrary and unreasonable exercise of the zoning powers of a home-rule city such as Lubbock, was affirmed by the Court of Civil Appeals and this judgment became final. 278 S.W.2d 519, wr. ref. n. r. e.

The trial court in the former suit concluded as a matter of law that 'defendant's property was actually within a business district and that the evidence so further showed it beyond a reasonable doubt, and that such zoning of his property in an 'A' (residential) zone is unreasonable and its application to his property is therefore void when applied to defendant's property in the use he was making thereof.' The respondent contends that this conclusion of law amounted to a holding that Ordinance No. 661 was void, and that such holding is res judicata of the issues in the present suit. With this contention we cannot agree. The 'take nothing' judgment entered against the city was based on the conclusion that the ordinance was void and of no force and effect 'when applied to defendant's property in the use he was making thereof.' The court did not hold that the ordinance was void when applied to a use different from the use he was making of the property at the time of the trial. There was an issue raised by the pleadings of the city which was similar to the issue in the present case. The city alleged that Stubbs was constructing improvements on his land 'preparatory to using such premises as a tourist court or trailer court in violation of the Building Code and the Comprehensive Zoning Ordinance (661) of the City of Lubbock.' Stubbs filed a verified pleading specially denying he was improving or using the property as a tourist or trailer court, and that it was not his plan, purpose or design to use it as a trailer court or tourist court. Thus, it is seen that the only use other than the nonconforming uses alleged by Stubbs in the former suit was eliminated. Stubbs, in the trial on the merits, testified that he never had any intention of using his land for any purpose other than that to which it was devoted at the time of the annexation. The city offered no evidence to the contrary upon this particular issue. The judgment of the trial court, dissolving the temporary restraining order theretofore granted, followed. The judgment of the Court of Civil Appeals in no way indicates that the use of the land by Stubbs as a 'trailer park' or 'trailer court' was authorized by its judgment or that of the trial court. The injunction prayed for by the city was denied, and Stubbs was authorized to continue using the property in the manner it was being...