Ellis v. City of West University Place

• Decision Date: 24 November 1943
• Docket Number: No. 8143.,8143.
• Citation: 175 S.W.2d 396
• Parties: ELLIS v. CITY OF WEST UNIVERSITY PLACE et al.
• Court: Texas Supreme Court

Page 396

175 S.W.2d 396

ELLIS v. CITY OF WEST UNIVERSITY PLACE et al.

No. 8143.

Supreme Court of Texas.

November 24, 1943.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by J. R. Ellis against the City of West University Place and another for damages alleged to have been sustained by plaintiff as a result of defendant city having procured issuance against him of a restraining order, a temporary injunction, and a supersedeas writ in former litigation, wherein the city claimed that present plaintiff had violated its zoning ordinance. Judgment that plaintiff take nothing was affirmed by the Court of Civil Appeals (171 S.W.2d 178), and plaintiff brings error.

Judgment of the Court of Civil Appeals affirmed.

Mathes Bonney & Clawson and Orrin H. Bonney, all of Houston, for plaintiff in error.

Harvey T. Fleming, of Houston, for defendant in error.

FOLLEY, Commissioner.

This suit was brought by the petitioner, J. R. Ellis, against the respondents, City of West University Place and the Hartford Accident & Indemnity Insurance Company, for alleged damages arising out of the issuance of a temporary restraining order, a temporary injunction, and a supersedeas bond suspending the dissolution of the temporary injunction, in former litigation between the petitioner and the City wherein the petitioner was attempting to erect a business building on his lot in a part of the city declared by ordinance to be for residential buildings only. In a trial before the court without a jury judgment was rendered against the petitioner. This judgment was affirmed by the Court of Civil Appeals. 171 S.W.2d 178.

The City of West University Place is an incorporated city, and, prior to the inception of this suit, adopted a comprehensive zoning ordinance under the provisions of Art. 1011a et seq., Vernon's Ann.St. The property of the petitioner is located in a zone where business buildings are prohibited. On January 13, 1938, petitioner began the construction of a business building upon his lot. On January 22, 1938, upon the petition of the respondent City, a restraining order was issued from the 11th District Court of Harris County restraining the petitioner from constructing the building. In the issuance of the restraining order the City and the insurance company above named executed a bond in the sum of $250. On February 3, 1938, the District Court, after a hearing, granted a temporary injunction prohibiting the construction of the building. In the issuance of the temporary injunction the City and the issurance company executed a bond for $1,000. On March 29, 1938, in a trial upon the merits, the temporary injunction was dissolved, and, upon the cross action of the petitioner, the City was permanently enjoined from interfering with the construction of the building. The City appealed from such judgment to the Court of Civil Appeals at Galveston, and, with the insurance company as surety, executed another bond for $1,000, as fixed by the trial court, to supersede the final judgment dissolving the temporary injunction. On July 14, 1938, the Court of Civil Appeals affirmed the judgment of the trial court. 118 S.W.2d 907. On January 3, 1940, the judgment of the Court of Civil Appeals was affirmed by the Commission of Appeals in an opinion adopted by the Supreme Court. 134 Tex. 222, 134 S.W.2d 1038. Immediately after the judgment of the Supreme Court became final, the petitioner re-entered his premises and completed the construction of his building which he had originally begun January 13, 1938.

In the present suit the petitioner claims certain items of damages which he alleges he sustained over the two-year period in which he was delayed by the former litigation in the construction of his building. Under our view of this case these items of damages become immaterial. The City was sued as principal and the insurance company as surety on the three bonds above mentioned. The respondents defended the suit upon the theory that in its conduct in the former litigation the City was in the exercise of its lawful police power and therefore not liable in damages in the performance of a valid governmental function. This theory was adopted both by the trial court and the Court of Civil Appeals. A writ of error was granted by this court upon the tentative theory that the Fourteenth Amendment of the Constitution of the United States guaranteed the petitioner protection in the nature of damages for unlawful interference with...