Powell v. City of McKinney

• Decision Date: 25 April 1986
• Docket Number: No. 05-85-00630-CV,05-85-00630-CV
• Citation: Powell v. City of McKinney, 711 S.W.2d 69 (Tex. App. 1986)
• Parties: John POWELL, et al., Appellants, v. CITY OF McKINNEY, Appellee.
• Court: Texas Court of Appeals

Page 69

711 S.W.2d 69

John POWELL, et al., Appellants, v.CITY OF McKINNEY, Appellee.

No. 05-85-00630-CV.

Court of Appeals of Texas Dallas.

April 25, 1986.

Rehearing Denied June 6, 1986.

Randall R. Moore and Darrell Panethiere, Law Offices of Windle Turley, P.C., Dallas, for appellants.

Kenneth C. Dippel and John M. Hill, Hutchison, Price, Boyle & Brooks, Dallas, for appellee.

Before VANCE, DEVANY and SCALES, JJ.

ON MOTION FOR REHEARING

DEVANY, Justice.

We grant the appellants' motion for rehearing, withdraw our former opinion and judgment of February 11, 1986, and substitute this opinion reversing the judgment of the trial court.

On original submission in this inverse condemnation and nuisance action we reversed the judgment of the trial court as it related to the two individuals over whom we held that we had jurisdiction.On our own motion, however, we dismissed the appeals of twenty-two other individuals whose interests the "Brief of Appellants" purported to represent because they were not included on the cost bond.On motion for rehearing, these individuals argue that they should have been given an opportunity to amend the bond before we dismissed their attempted appeals, notwithstanding their failure to request permission to do so until after we dismissed the appeals.We grant their motion to amend the bond.

The City of McKinney, however, urges that we were correct in our original assessment that this court had no jurisdiction over those individuals not named on the appeal bond.It insists that the bond was not defective but, rather, that it simply did not pertain to the appeal of the dismissed individuals.The City would have us hold that the cost bond of "John Powell and Annette Powell" was exactly what it purported to be--a timely and adequate cost bond perfecting the appeals of these two individuals, but these two individuals only.Therefore, the City argues, the authority and duty of this Court to allow the amendment of a defective cost bond, arising under rules 363aand437, ¹ are inapplicable.

While the City's argument has merit and was our original position on submission, we conclude now that, under case law, the timely filing of an appeal bond by any of several proper appellants gives this court jurisdiction over the entire appeal and that an appellant who establishes that he was inadvertently omitted from the jurisdiction-invoking cost bond has the right to amend the bond by adding his name to it.SeeShults v. State, 682 S.W.2d 260-61(Tex.1984);Kimberly Development Corp. v. First State Bank, 404 S.W.2d 631, 634(Tex.App.--Houston1966, writ ref'd n.r.e.);Bean v. Hardware Mutual Casualty Co., 349 S.W.2d 284, 286-87(Tex.Civ.App.--Beaumont1961, writ ref'd n.r.e.).It is the presence of a timely appeal bond executed by proper appellants in this case that distinguishes the present situation from that presented in Governing Board v. Pannill, 561 S.W.2d 517, 521-22(Tex.Civ.App.--Texarkana1977, writ ref'd n.r.e.).The attorney of record for the appellants and the individual who prepared the application for appeal bond have each submitted affidavits in which they allege that the dismissed individuals were meant to have been included on the appeal bond and that they were named as appellants on the application for appeal bond.Thus, the instant case, like Bean, appears to be a case of a simple mistake in the typing of the cost bond by failing to include the phrase "et al."

Turning to the merits of the appeal, we will refer to all of the appellants as the "Powells."We hold that the summary judgment was based upon lack of a denial of an improper request for admission, which did not dispose of all issues of material fact.Consequently, we reverse and remand the judgment of the trial court.

The City's motion for summary judgment is based entirely upon a request for admission which the Powells failed to deny, and which the City urges is, therefore, deemed admitted pursuant to rule 169.The requested admission states that the Powells "no longer wish to pursue their cause of action in the above styled and numbered cause."

The Powells contend, inter alia, that summary judgment was inappropriate because this requested admission, which the trial court viewed as admitted, does not, standing alone, constitute sufficient summary-judgment evidence.We agree."The wor[d]'wish' ... can be and frequently [is] used ... to express hope or desire unaccompanied by any expectation or intention of gratifying the wish ... immediately."Austin Presbyterian Theological Seminary v. Moorman, 391 S.W.2d 717, 720(Tex.1965).

We conclude that this requested admission, which goes only to the "wish" of the parties, is not relevant to the material issues of...