Teer v. Duddlesten

• Decision Date: 10 June 1982
• Docket Number: No. C2933,C2933
• Citation: 641 S.W.2d 569
• Parties: Reggie TEER, et al., Appellants, v. Wayne B. DUDDLESTEN, et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 569

641 S.W.2d 569

Reggie TEER, et al., Appellants, v. Wayne B. DUDDLESTEN, et al., Appellees.

No. C2933.

Court of Appeals of Texas, Houston (14th Dist.).

June 10, 1982.

Rehearing Denied July 15, 1982.

Robert L. Burns, Sears & Burns, Houston, for appellants.

Steven C. Oaks, William A. Sherwood, Butler, Binion, Rice, Cook & Knapp, Larry W. Schenk, Olson & Olson, Houston, for appellees.

Before MILLER, MORSE and JAMES, JJ.

JAMES, Justice.

The original opinion is withdrawn and the following opinion is substituted in its place.

This is an appeal from the granting of a summary judgment declaring certain ordinances of the City of Bellaire (hereafter "the City") valid and ordering that Plaintiffs, Reggie Teer and Andy Hunzicker (hereafter "appellants"), take nothing as against Defendants, Wayne B. Duddlesten, H-R-D-37, Ltd., and the City. We refer to Mr. Duddlesten and H-R-D-37, Ltd. as "appellees." The City did not file a brief in support of the judgment.

Although appellants bring forward nine points of error, we find this case presents only three main questions. First, was the summary judgment appealed from final so as to vest this court with jurisdiction over the appeal? Second, was the summary judgment proof sufficient to support the judgment? Third, are the ordinances under attack valid as a matter of law? We answer all three questions in the affirmative and accordingly affirm the judgment of the trial court.

Appellants sought two items of relief in the trial court: (1) a declaratory judgment decreeing that certain ordinances of the City are void and (2) an injunction barring enforcement of said ordinances. The basis of appellants' suit was to prevent the improvement and development of a tract of land situated near their residences. This tract, approximately thirty-eight (38) acres in size, is known as the Marian tract. Appellees submitted to the City a proposed building and site plan for the development of a "planned development district" which was authorized by former Chapter 24 of the Code of Ordinances of the City. Appellees, owners of the land, plan to develop the tract which is bounded by Fournace Place, Avenue B, Bissonnet Street, and Interstate Highway 610. Appellant Teer's home abuts on and is across Fournace Place from the Marian tract and appellant Hunzicker's home abuts on and is across Avenue B from such tract.

On April 24, 1972, the Bellaire City Council passed Ordinance No. 1842 which provided for a "planned development district" as one of eighteen enumerated zoning districts. These planned development districts could be created by one of two methods: "(1) by approval of an application as an amendment to the Zoning Ordinance or (2) by designation of a Planned Development District on the map and in the ordinance at the time of the original enactment of a comprehensive revision of the Zoning Ordinance."

Ordinance No. 1842 established Planned Development-2 through Planned Development-13. It provided that Planned Development-3 could combine uses for the O (office) and LR (light retail) districts. Ordinance No. 1842, which was subsequently amended, is the basis of former Chapter 24. According to a schedule of uses in Sec. 24-85 through Sec. 24-96 of former Chapter 24, uses permitted in the O and LR districts included office buildings, theaters, restaurants and hotels. Section 24-186 of former Chapter 24 also provided that area, density, coverage, floor area ratio, yard, height, parking and off-street loading regulations for Planned Development-3 should comply with the minimum standards established in the O and LR districts. Since the development proposed by appellees did not exactly conform to the density, yard, height, and other provisions originally established by former Chapter 24 for Planned Development-3, appellees applied for an amendment to the planned development provisions of former Chapter 24. Thereafter, on March 17, 1980, Ordinance No. 80-018 was enacted which amended the basic conditions and regulations in former Chapter 24 applicable to Planned Development-3, approved the On April 23, 1980, the City Council enacted new Chapter 24. This new Chapter 24 provides for a different zoning methodology with respect to planned developments. Rather than indicating certain areas on the zoning map as planned development districts and establishing basic conditions for their development, the new Chapter 24 provides that a planned development may be established in any district, except as delineated, by compliance with certain restrictions and limitations and by resort to the amendatory procedures of new Chapter 24. Since planned development districts as such have been abolished and new districts created, the Marian tract is now encompassed within an area denominated the Loop 610 District. Provision is made in new Chapter 24 for two different types of planned developments within the Loop 610 District, namely, "Office Plaza Hotel," and "Residential Office Plaza." Uses allowable within the new Loop 610 District include residential dwellings, office buildings, restaurants, theaters, parks and retail sales and service establishments. Ordinance No. 80-018, approving the building and site plans of Planned Development-3, is incorporated in and adopted as Sec. 24-802 of Article VIII of new Chapter 24.

building and site plans of appellees, and set out certain conditions and requirements to be met in developing the Marian tract.

Prior to the enactment of new Chapter 24 the City had authorized the development of a variety of planned development districts in addition to Planned Development-3. The City Council approved the building and site plans for all of these planned developments and they have been developed in substantial compliance with the ordinances providing for each development.

Appellants brought suit shortly after the enactment of new Chapter 24. Appellees followed with a motion for summary judgment. The City did not file such a motion. However, the trial court's judgment purported to adjudicate appellants' rights as against the City since the judgment provides that appellants "do have and recover nothing of, from and against Defendants, City of Bellaire, ..., that Defendants, City of Bellaire ..., be and they are hereby discharged; [and] that the above-referenced action be, ..., dismissed with prejudice; ...." Throughout this entire litigation, the City has remained passive, having only filed an original answer and a response to appellees' interrogatories.

Appellants now assert that the trial court's judgment is interlocutory and thus not appealable because "[it] does not dispose of all the parties in the case and a severance was not ordered." This is the basis of appellants' motion to dismiss the appeal for want of jurisdiction previously filed with this Court and their points of error 1 and 2. Upon hearing oral arguments by both sides at the hearing on the motion, we denied that motion and deferred a written decision on the question of jurisdiction until formal submission of the case on appeal.

JURISDICTION

In North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966), the Texas Supreme Court held as follows:

When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.

400 S.W.2d at 897, 898.

In the instant case, the judgment recites that "there is no genuine issue of any material fact regarding the validity of the ordinances of Defendant, City of Bellaire...." Appellants' reliance on Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959) is thus misplaced. There the trial court neither expressly nor by implication disposed of all issues and parties before it. The trial court in Pan American had entered a summary judgment against certain defendants In the case before us, the judgment is not "intrinsically interlocutory." It not only expressly disposed of all parties but it also disposed of the only issue which was before it--the validity of the ordinances. Nothing remained for further disposition by the trial court. The trial court's adjudication was a judgment in rem because it declared and determined the status of a thing, to-wit, the validity of the ordinances. Allied Van Lines, Inc. v. Central Forwarding, Inc., 535 S.W.2d 412 (Tex.Civ.App.--Waco 1976, writ ref'd n.r.e.). In Allied Van Lines, the court held that a judgment determining and declaring the status of the Specialized Motor Carrier Certificate was a judgment in rem which was binding on all parties who have an interest in the suit since the form of the judgment adjudicated matters of public interest. We reaffirm the denial of appellants' motion to dismiss the appeal and overrule their points of error 1 and 2.

and no severance was ordered as to that phase of the case. The Texas Supreme Court held that a summary judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered. We held in Stockton v. Summers, 504 S.W.2d 637, 638 (Tex.Civ.App.--Houston [14th Dist.] 1974) that the rule of Pan American was not changed by Aldridge because "[Aldridge] states a test for determining when a judgment 'not intrinsically interlocutory' may be presumed to have disposed of parties or issues not explicitly mentioned."

THE VALIDITY OF THE ORDINANCES

In their points of error 7, 8 and 9, appellants give fourteen reasons why the ordinances under attack are void. The main thrusts of these reasons are as follows: The Zoning Enabling Act, Tex.Rev.Civ.Stat.Ann. art. 1011 et seq. (Vernon 1963)...