City of Willow Park v. Bryant

• Citation: 763 S.W.2d 506
• Decision Date: 23 December 1988
• Docket Number: No. 2-87-081-CV,2-87-081-CV
• Parties: CITY OF WILLOW PARK, Appellant, v. Max E. BRYANT; Dwight Burton, and Wife, Wanda Burton; Roger G. Bedell, and Wife, Nancy Bedell; Grady Crain, and Wife, Judy Crain; John Goodman, and Wife, Ginny Goodman; Frank A. Clark, and Wife, Phylis S. Clark, Appellees.
• Court: Texas Court of Appeals

Page 506

763 S.W.2d 506

CITY OF WILLOW PARK, Appellant, v. Max E. BRYANT; Dwight Burton, and Wife, Wanda Burton;

Roger G. Bedell, and Wife, Nancy Bedell; Grady Crain, and

Wife, Judy Crain; John Goodman, and Wife, Ginny Goodman;

Frank A. Clark, and Wife, Phylis S. Clark, Appellees.

No. 2-87-081-CV.

Court of Appeals of Texas,

Fort Worth.

Dec. 23, 1988.

Rehearing Denied Jan. 26, 1989.

Staples, Foster & Hampton, and Carter L. Hampton, Hurst, for appellant.

Kenneth N. Price, Azle, for appellees.

Before HILL, FARRIS and KELTNER, JJ.

OPINION

KELTNER, Justice.

This is an appeal by the City of Willow Park from a declaratory judgment declaring that three of its annexation ordinances are invalid. See TEX.CIV.PRAC. & REM.CODE ANN. sec. 37.004 (Vernon 1986). Max E. Bryant and a number of other residents of a development in an area claimed to be in the city limits of Willow Park brought the declaratory judgment action seeking a declaration that the annexation ordinances were invalid and, as a result, their property was not within the city limits of Willow Park.

We reverse and render in part, reverse and remand in part, and affirm in part.

The City of Willow Park was incorporated in 1963. Later that year, the City passed Ordinance 107, which disannexed some specified portions of the land originally incorporated into the City. The evidence reflects that the ordinance resulted in the disannexing of a substantial area of land; and left three islands remaining of incorporated land which were geographically detached from the main body of the City of Willow Park. We are primarily concerned with only one of these islands, hereinafter referred to as the "L-shaped" island.

Almost fifteen years later, by Ordinance 143, the City attempted to annex an area in which some of the appellees reside. The land encompassed by Ordinance 143 was adjacent and contiguous to only one part of the City of Willow Park. That portion of the City was the L-shaped island created by disannexation Ordinance 107, away from the main body of Willow Park. Three months later, the City annexed more property, where the remainder of the appellees reside, through Ordinance 150. The land encompassed by Ordinance 150 was only contiguous and adjacent to the land previously annexed in Ordinance 143.

In 1984 the City passed Ordinance 188-84 which annexed a narrow strip of land that connected the L-shaped island adjoining the Ordinance 143 land to the main body of Willow Park.

In 1985 the residents of Willow Park passed a bond issue which resulted in the authorization of an ad valorem tax. Soon thereafter appellees complained to the City that their homes and property were not legally part of the City. This suit followed.

Appellees contend that the islands, created by Ordinance 107 in 1963, ceased to be a part of the City of Willow Park because they were no longer adjacent and contiguous to the main body of the City as required by law. The City contends that if the islands were created, they remained part of the City of Willow Park since there is nothing in Texas law which prohibits creation of islands by disannexation. Both parties admit that municipalities may only annex land which is adjacent and contiguous to existing city boundaries. See City of Waco v. City of McGregor, 523 S.W.2d 649, 652 (Tex.1975); State of Texas ex rel Pan American Prod. Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780, 781-82 (1957), appeal dism'd, 355 U.S. 603, 78 S.Ct. 533, 2 L.Ed.2d 523 (1958). As a result, Texas case law prohibits annexation which results in the creation of islands of incorporated areas away from the main body of the municipality. City of Pasadena v. State ex rel City of Houston, 442 S.W.2d 325, 328 (Tex.1969).

The trial court, based upon a single jury issue, ruled in favor of appellees and held Ordinances 143, 150 and 188-84 were without legal effect. The court also enjoined Willow Park from exercising any municipal authority over the areas purportedly annexed in those ordinances.

The City brings eight points of error on appeal.

In its sixth point of error, the City argues the trial court had no jurisdiction because the Attorney General was not made a party to the lawsuit in accordance with TEX.CIV.PRAC. & REM.CODE ANN. sec. 37.006(b) (Vernon 1986). Section 37.006(b) provides:

In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party ... and if the ... ordinance ... is alleged to be unconstitutional, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard.

Id.

Appellees did not contend that the ordinances were unconstitutional. As a result, failure to serve the Attorney General did not deprive the trial court of jurisdiction. See Lumberton Municipal Utility Dist. v. Cease, 596 S.W.2d 601, 604 (Tex.Civ.App.--Beaumont 1980, no writ); Webb v. L.B. Walker and Associates, 544 S.W.2d 952, 957 (Tex.Civ.App.--Houston [14th Dist.] 1976, writ ref'd n.r.e.).

During oral argument, the City's attorney additionally argued that appellees should have brought their challenge to the validity of the annexation ordinances in a quo warranto proceeding rather than a collateral attack. We disagree. Appellees claimed that the annexation ordinances are void and not merely voidable. The law is well settled that a collateral attack is proper where plaintiffs contend that the ordinances are void. See City of West Lake Hills v. State ex rel City of Austin, 466 S.W.2d 722, 729 (Tex.1971); City of Nassau Bay v. City of Webster, 600 S.W.2d 905, 907 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.); City of Missouri City v. Senior, 583 S.W.2d 444, 446 (Tex.Civ.App.--Houston [1st Dist.] 1979, writ ref'd n.r.e. 608 S.W.2d 618); City of Irving v. Callaway, 363 S.W.2d 832, 836 (Tex.Civ.App.--Dallas 1962, writ ref'd n.r.e.). Point of error six is overruled.

In its seventh point of error, the City argues that the statute of limitations bars appellees' claims. The City raised several statutes of limitations as defenses, including TEX.CIV.PRAC. & REM.CODE ANN. sec. 16.051 (Vernon 1986). This is the residual four-year statute of limitations. Our research has uncovered only one case squarely on point. Weaver v. City of Sunset Valley, 535 S.W.2d 12 (Tex.Civ.App.--Austin 1976, no writ). In Weaver, landowners brought suit in 1975, seeking declaratory judgment to set aside two ordinances passed in 1963, which purportedly annexed their land. The municipality pled the four-year statute of limitations, found at that time in TEX.REV.CIV.STAT.ANN. art. 5529, now codified in section 16.051. The trial court dismissed the cause as barred by limitations. Weaver, 535 S.W.2d at 12. The Austin Court of Appeals affirmed, holding that although the 1963 annexation appeared absolutely void because Sunset Valley annexed land within the City of Austin's extraterritorial jurisdiction, plaintiffs had to bring their suit within four years of the passage of the ordinance. Id. at 13.

The appellees here contend that because the Willow Park ordinances are void ab initio, no limitations period could apply. In support of this theory, they cite City of Houston v. Harris County Eastex Oaks Water & Sewer Dist., 438 S.W.2d 941 (Tex.Civ.App.--Houston [1st Dist.] 1969, writ ref'd n.r.e.). We have carefully read the Eastex Oaks opinion and find no support for appellees' contention. The statute of limitations was not an issue in that case and clearly could not have been involved. It is evident from the facts of the opinion that the suit was filed within the four-year time period after the passage of the challenged ordinance. Id. at 943-44.

Because the undisputed facts show suit was not filed in this case until long after four years from the enactment of Ordinances 143 and 150, appellees' cause of action for declaratory judgment on those ordinances is barred by the statute of limitations. As a result, we sustain point of error seven. However, we note that the statute of limitations would not apply in a quo warranto action brought by the State. TEX.CIV.PRAC. & REM.CODE ANN. sec. 16.061 (Vernon 1986).

In its third point of error, the City contends the trial court erred in holding that Ordinance 188-84 is "wholly without legal effect."

Although this case was tried to a jury, the single issue submitted to the jury did not involve Ordinance 188-84. The trial court filed findings of fact and conclusions of law. In the findings and conclusions, the court held: (1) the property contained in Ordinance 188-84 consisted, in part, of private property for which there was no petition for annexation; (2) Ordinance 188-84 was composed of property that was not at least 500 feet in width at its narrow point contiguous with the corporate city limits on two sides; and (3) the ordinance is wholly without legal effect. Although it is questionable whether the trial court had the authority to make additional findings of fact on disputed factual issues after a jury trial--see Ditto v. Ditto Investment Co., 158 Tex. 104, 309 S.W.2d 219, 220 (1958), and Murray v. Brazzel, 438 S.W.2d 382, 384-85 (Tex.Civ.App.--Waco 1969, writ ref'd n.r.e.), even assuming arguendo such findings were properly entered, we can find no evidence in the record that supports any of the court's findings of fact, and the resulting conclusions of law. The ordinance itself was not introduced into evidence, even though it was attached to appellees' petition. As a result, none of the property descriptions in Ordinance 188-84 are in the record. The only evidence in the record relating to this ordinance is testimony that it consists of an area marked in dark green in appellees' exhibit 12, a map of the areas in controversy. However, no one testified that area was an accurate description of the land purportedly annexed in the ordinance.

The appellees do not direct our attention to any evidence that would uphold the court's findings of fact and conclusions of...