City of Lufkin v. AKJ Props., Inc.
| Decision Date | 26 June 2012 |
| Docket Number | No. 06-12-00005-CV,06-12-00005-CV |
| Parties | CITY OF LUFKIN, TEXAS, A MUNICIPAL CORPORATION, Appellant v. AKJ PROPERTIES, INC., ROLLIN' J TRANSPORTATION, INC., AND ALTON KIRK JOHNSON, Appellees |
| Court | Texas Court of Appeals |
Before Morriss, C.J., Carter and Moseley, JJ.
The dispute between Alton Kirk Johnson and wife, Aliene Johnson (the Johnsons), and two Johnson companies,1 on one side, and the City of Lufkin (the City), on the other, centers around how the Johnsons used their land during the fall of 2006, when the City was annexing the Johnson property into the City, and thus whether they qualified to continue a nonconforming use, notwithstanding the new contrary zoning by the City. From a jury verdict and a judgment favoring the Johnsons, the City appeals, attacking the sufficiency of the evidence and the trial court's rulings that denied the City's requested jury questions and excluded the City's tendered 2009-2010 photographs. We affirm the trial court's judgment, because (1) sufficient evidence supports the jury's finding of the Johnsons' pre-existing use, (2) refusing the City's requested jury instructions was not error, and (3) excluding the 2009-2010 photographs was not error.
The Johnsons had determined that a certain ten-acre tract of land—land with highway frontage in an unincorporated area of Angelina County2 just outside the city limits of Lufkin— was an ideal location for their heavy equipment transport and repair business. In December 2005, the Johnsons purchased the property, on which a single house was situated. Plans were developed to establish the business office in the house already on the property. After havingobtained a permit from the Texas Department of Transportation (TX-DOT) in January 2006, the Johnsons built a commercial driveway on the property's highway right-of-way.
A few months later, on November 7, 2006, the City instituted, and shortly thereafter completed, annexation proceedings that covered the land in question.3 After completing the annexation, the City passed an ordinance zoning the subject property for agricultural use4 and later filed a declaratory judgment lawsuit seeking to enjoin the Johnsons from operating their commercial business on the annexed property. The Johnsons claimed they were entitled to a nonconforming use permit. See TEX. LOCAL GOV'T CODE ANN. § 43.002 (West 2008). Specifically, they claimed that the land was used for commercial purposes before annexation was instituted and that they had begun to use the land in the intended fashion ninety days before the effective date of the annexation. After a jury trial, the trial court entered judgment against the City, granting the nonconforming use status under the City's zoning restrictions.
The City claims the evidence is legally and factually insufficient to support the jury's verdict regarding its answers to questions one, two, and four.5 No sufficiency challenge is posed with respect to the jury's answer to question number five.6
In reviewing a legal sufficiency complaint of an adverse finding on which the appellant did not have the burden of proof, the appellant must demonstrate on appeal that no evidence supports the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Monasco v. Gilmer Boating & Fishing Club, 339 S.W.3d 828, 830 (Tex. App.—Texarkana 2011, no pet.). A legal sufficiency challenge will be sustained only when the record discloses (1) a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence, or (4) the evidence established conclusively the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Monasco, 339 S.W.3d at 830. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Merrell Dow Pharms.,Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Evidence that is so weak as to do no more than to create a mere surmise or suspicion is no more than a scintilla and is therefore no evidence. Id.
In reviewing the legal sufficiency of the evidence, we are to consider all of the evidence in the light most favorable to the verdict, indulging every reasonable inference that would support it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). When the evidence allows only one inference, "neither jurors nor the reviewing court may disregard it." Id.
When challenging the factual sufficiency of the evidence to support an adverse finding on which the appealing party did not have the burden of proof, the appellant must demonstrate that there is insufficient evidence to support the adverse finding. Monasco, 339 S.W.3d at 830. In our review, we consider all the evidence supporting and contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Solutioneers Consulting, Ltd., v. Gulf Greyhound Partners, Ltd., 237 S.W.3d 379, 385 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
The evidence is sufficient to support the adverse finding if the evidence is such that reasonable minds could differ on the meaning of the evidence, or the inferences and conclusions to be drawn therefrom. Cendant Mobility Servs. Corp. v. Falconer, 135 S.W.3d 349, 352 (Tex. App. —Texarkana 2004, no pet.). Conversely, a factual-sufficiency challenge will be sustained if the evidence is so weak or the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). With thesestandards in mind, we evaluate the evidence presented in support of the jury's answers to questions one, two, and four.
Dorothy Wilson, planning director for the City, testified that she drove out to look at the Johnson property approximately six times before annexation to determine how the land was being used. While she observed a residential home and fencing, Wilson did not see any signs of a commercial business operation. Wilson admitted that, while driving around to determine pre-existing commercial use, she missed a nearby mobile home park.
Two neighbors in the vicinity testified that, before annexation, there was only a house on the property. One neighbor testified there was no heavy equipment on the property before annexation.
Don Langston, a council member for the City, testified that he drove the area encompassing the property "half a dozen times" before annexation and that there was no activity on the property. During 2006, Langston never saw machinery lined up for sale on the property— the only equipment he observed was that which was used for improvement purposes.
On the other hand, the following paragraphs set out testimony from the Johnsons' perspective concerning the use of the property during the time in question.
Alton testified that AKJ purchased the property from George Clark in August 2005. Clark agreed to permit AKJ to take possession of the property before closing, in exchange for AKJ's agreement to take over all expenses and utilities associated with the property.7 Eventhough AKJ did not actually lease the property to RJT until January 2006, RJT started using the property before the lease was signed.
In August 2005, after paying earnest money to Clark, AKJ began using the property. During that month, according to trial testimony, AKJ purchased one piece of heavy equipment and sold four items of heavy equipment. Of the equipment sold, a mobile trailer and a used 2000 Kenworth tractor were on AKJ property at some point that month. Even though some of the equipment AKJ sold was never physically located on AKJ property, the business transactions and the documentation of those transactions took place there.
The following month, AKJ sold five pieces of heavy equipment to various entities. Only a dozer sold to J&H Equipment in Gladewater was located on AKJ property that month.
In October and November 2005, AKJ purchased two pieces of heavy equipment and sold four. Of the items sold, an excavator sold to Denmar Enterprises and a hydraulic hammer sold to Allied Erecting were located on AKJ property. A dozer AKJ purchased was also on the property for a time.
In December 2005 and January 2006, AKJ sold four items of heavy equipment. Among these items, a Kenworth tractor, an excavator, and a dozer were on AKJ property during this time frame.
In February through April 2006, AKJ sold six items of heavy equipment and purchased six items of heavy equipment. Among these items—a dozer, a loader, backhoe, and an asphalt paver were located on AKJ property.
In May through July 2006, AKJ sold three items of heavy equipment and purchased one item of heavy equipment. Among these items—a dozer purchased from Capco was located on AKJ property. In June, an excavator sold to Allied Erecting was located on AKJ property and was later transported by AKJ to Ohio at the behest of Allied. When asked about certain photographs depicting two excavators on AKJ property being loaded for transport, Alton explained that the equipment was being transported from Ohio to Las Vegas for an equipment show. The equipment was brought to the City for a layover before transport to Las Vegas. This was also an Allied project, which Alton testified took place in January 2006. On cross-examination, Alton testified that the photographs were not taken in January 2007 after the culvert was installed.8
In October through December 2006, AKJ sold five items of...
To continue reading
Request your trial