Pearce v. City of Round Rock
| Decision Date | 06 May 1999 |
| Docket Number | No. 03-98-00233-CV,03-98-00233-CV |
| Parties | Richard Wallace PEARCE and Jesse Ray Blann, Appellants, v. CITY OF ROUND ROCK, Frank Del Castillo, Terry Hagood, Keith Hickman, Brian Lott, Mark Silla and Joseph Vining, Appellees. |
| Court | Texas Court of Appeals |
P. Michael Jung, Strasburger & Price, LLP, Dallas, for appellant.
Stephan L. Sheets, Brown, McCarroll, Sheets & Crossfield, L.L.P., Round Rock, for appellee.
Before Justices KIDD, PATTERSON and POWERS. *
Appellants Richard Wallace Pearce and Jesse Ray Blann (collectively "Pearce") filed suit in district court against the city of Round Rock (the "City"), the members of the Development Review Board in their official capacities (the "Board"), 1 and the City's planning director Joseph Vining ("Vining"), 2 after Vining denied Pearce's request for advertising sign permits and the Board affirmed Vining's decision. The appellees filed a plea to the jurisdiction and moved to dismiss the suit on the ground that the Board, as an entity, was an indispensable party whom Pearce failed to sue. The trial court granted the plea and dismissed the cause of action. Pearce contends that dismissal was improper because (1) he sufficiently perfected his appeal by naming as defendants all the Board members in their official capacities, (2) he sufficiently perfected his appeal by naming the City as a defendant, and (3) he was not statutorily required to explicitly seek issuance of a writ of certiorari in order to invoke subject matter jurisdiction. We will reverse the decision of the district court and remand the cause to that court for further proceedings.
Pearce obtained permits and leases for the erection of nine outdoor advertising signs within the City's extraterritorial jurisdiction. Pearce had completed construction and had leased two of the signs when the Round Rock City Council adopted an ordinance extending into its extraterritorial jurisdiction the City's jurisdiction over outdoor advertising. After the ordinance was adopted, Vining posted "stop work" orders on all nine signs, asserting violations of the new ordinance. Pearce applied for permits for the signs, but Vining denied the permits.
Pursuant to the City's Code of Ordinances, 3 Pearce appealed the denial to the Board, contending that the signs were grandfathered in under the ordinance. Three of the five Board members voted to reverse Vining's decision as to seven of Pearce's signs. The reversal vote failed, however, because the municipal ordinance requires a supermajority (four of five) to overturn the director's decision. See Round Rock, Tex., Code of Ordinances § 11.324(10). The Board also affirmed Vining's denial of permits for the remaining two signs.
On August 7, 1997, prior to the ten-day deadline established by municipal ordinance, 4 Pearce filed his original petition in district court appealing the decision of the Board. In both his original and first amended petitions, Pearce listed as defendants the City, Vining (in his official capacity as Director of Planning and Community Development), and each of the five members of the Board (in their respective official capacities as members of the Board). The City, Vining, and the Board members filed a plea to the jurisdiction and moved to dismiss the suit on the ground that the Board, as an entity, was an indispensable party whom Pearce failed to sue. On October 28, 1997, after the ten-day deadline had passed for filing a petition, Pearce amended his petition and listed the Board as an additional defendant. On October 29, 1997, the trial court rendered judgment granting the plea to the jurisdiction and dismissing the cause for lack of jurisdiction.
Pursuant to the city ordinance and corresponding state statute, Pearce timely filed a petition challenging the legality of the Board's decision. However, instead of specifically naming the Board as a defendant, Pearce named as defendants the City and all of the Board members in their respective official capacities as members of the Board. Therefore, the threshold issue is whether Pearce sufficiently invoked subject matter jurisdiction by naming the parties as he did, or whether Pearce was required to name the Board itself as a defendant.
Once a party files a petition within ten days of a zoning board decision, the court has subject matter jurisdiction to determine a claim that a board of adjustment acted illegally. Davis v. Zoning Bd. Of Adjustment, 865 S.W.2d 941, 942 (Tex.1993) (referring to Tex. Loc. Gov't Code § 211.011). Review of a board of adjustment's decision is governed by Local Government Code section 211.011, which provides:
(a) Any of the following persons may present to a court of record a verified petition stating that the decision of the board of adjustment is illegal in whole or in part and specifying the grounds of illegality:
(1) a person aggrieved by a decision of the board;
(2) a taxpayer; or
(3) an officer, department, board or bureau of the municipality.
(b) The petition must be presented within 10 days after the date the decision is filed in the board's office.
Tex. Loc. Gov't Code Ann. § 211.011 (West 1988). 5
Pearce challenged the legality of the Board's decision within the required ten days, but the appellees contend that Pearce's petition was insufficient to invoke jurisdiction. Neither the ordinance nor the statute explicitly requires the Board be named as a defendant; both are silent as to whom must be or can be sued. 6 The The entire focus of the trial court is upon the action of the Board. It would be unfair for the court to determine its course of action about the Board or its decision, if the Board was not a party-defendant to the action before the court, with the opportunity to participate in the trial.
We initially note that when a trial court order dismisses a cause for want of jurisdiction, Texas appellate courts construe the pleadings in favor of the plaintiff and look to the pleader's intent. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). Pearce contends that naming as defendants all of the Board members in their official capacities as members of the Board was equivalent to naming the Board as an entity. He contends that the Board is nothing more than the sum of its members, working in their official capacities. Thus, he argues that by naming all of the Board members as defendants, he put the Board, as an entity, on notice of the suit and sufficiently invoked subject matter jurisdiction and perfected his appeal. We agree.
Pearce relies upon a line of cases holding that actions against officials in their official capacities effectively are actions against the governmental entity of which the officials are employees or agents. See Reyna v. City of Weslaco, 944 S.W.2d 657, 661 (Tex.App.--Corpus Christi 1997, no writ); City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.--Houston [1st Dist.] 1995, no writ). Pearce contends that suits against officials in their official capacities are effectively suits against the offices they hold.
The appellees respond that naming members of an entity as defendants is not equivalent to naming the entity itself as a defendant. See Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324, 327 (1956) (); Gonzalez v. Gutierrez, 694 S.W.2d 384, 389 (Tex.App.--San Antonio 1985, no writ) (city not made party to suit by naming mayor in his official capacity as defendant). However, these cases are distinguishable because the plaintiffs...
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