Thompson v. City of West Lake Hills
| Decision Date | 22 July 1970 |
| Docket Number | No. 11765,11765 |
| Citation | 457 S.W.2d 398 |
| Parties | Andrew Z. THOMPSON et al., Appellants and Appellees, v. The CITY OF WEST LAKE HILLS et al., Appellants and Appellees, |
| Court | Texas Court of Appeals |
Turman & Mitchell, Graves, Dougherty, Gee, Hearon, Moody & Garwood, William L. Garwood, for City of West Lake Hills. H. Glenn Cortez, City Atty., Richard E. Tulk, Asst. City Atty., for City of Austin.
Ned Granger, County Atty., for State.
James A. Brady, Stayton, Maloney, Black, Hearne & Babb, John W. Stayton, Austin, for Andrew Z. Thompson and others.
This suit was instituted by Andrew Z. Thompson of Bexar County, Texas, Sterling Holloway, Thalbert R. Thomas, Emmett Shelton, Sr., Harvey H. Lane, Jr., William G. Poole, John Ledbetter and wife, Frances Ledbetter, John W. McBrine and wife, Marion McBrine, Mrs. S. J. Treadway, a feme sole and W. H. Watson and wife, Alexzena Raines Watson of Travis County, Texas, hereinafter called Plaintiffs, against the City of West Lake Hills and Eddie G. Woolley, its Mayor. 1
Plaintiffs alleged that they are the owners of property within the boundaries claimed to form the City of West Lake Hills and of large undeveloped acreages within the Wilkenson-Sparks Survey, the David Thomas Survey, the Wm. Brown Survey, the Wm. McCutcheon Survey, the A.L.D. Benham Survey No. 503, the T. J. Chambers Survey No. 504, and the Thomas Gray Survey of Travis County, Texas, situated on the west side of Lake Austin, the same being acreage not incorporated within the corporate limits of the City of West Lake Hills, but part of the territory over which the City of West Lake Hills attempts to exercise exclusive extraterritorial jurisdiction, by virtue of a so-called 'incorporated buffer zone,' surrounding the territory.
Plaintiffs prayed that the incorporation of the Village of West Lake Hills be declared to be invalid and of no force and effect; that the annexation by the Village of West Lake Hils of the so-called 'incorporated buffer zone' be declared to be invalid and of no force and effect; that the territory surrounded by the 'incorporated buffer zone' be declared to be within the extraterritorial jurisdiction of the City of Austin to the extent it is within five miles (5 mi.) of the corporate boundaries of the City of Austin, and within the overlapping extraterritorial jurisdiction of West Lake Hills and the City of Austin, to the extent it is within one-half mile (1/2 mi.) from the corporate boundaries of the City of West Lake Hills, and five miles (5 mi.) from the corporate boundaries of the City of Austin; that the Defendant City of West Lake Hills and its officials, agents and employees, be enjoined from attempting to annex or to obtain petitions for annexation of any territory surrounded by the 'incorporate buffer zone' until the validity of the incorporation of West Lake Hills, the validity of the annexation of the 'incorporated buffer zone,' and the status of the extraterritorial jurisdiction of the territory surrounded by the 'incorporated buffer zone' can be determined. 2
The City of Austin intervened and following appropriate allegations prayed that it have judgment that the incorporation of West Lake Hills, insofar as it attempts to incorporate territory already in the City of Austin, be declared invalid and of no force and effect; that the annexation of the village of West Lake Hills of the so-called 'incorporated buffer zone' be declared to be invalid and of no force and effect.
The State of Texas acting by the County Attorney of Travis County was permitted to intervene on relation of the City of Austin against the City of West Lake Hills as in quo warranto. The relief sought by this pleading was that the prayer made by the City of Austin be 'ordered.'
We will notice other pleadings in the case only as may become necessary.
The trial was without a jury and at its conclusion judgment was rendered January 9, 1970, 3 that portions of the City of West Lake Hills as originally incorporated and certain annexing ordinances of such City were void and of no effect. The general purport of this judgment was that all territory north of Bee Creek as originally incorporated and the buffer zone or strip west, north and northwest of the City of West Lake Hills attempted to be included in the boundaries of the City were not validly included.
All parties except City of Austin, as shown in the judgment, excepted to this judgment and gave notice of appeal to this Court, the Plaintiffs insofar as the judgment denied them the additional relief sought, the State insofar as it was denied relief sought in its Information in Quo Warranto and the City of West Lake Hills insofar as the judgment granted other parties any relief. On January 13, the City of Austin filed its exception and notice of appeal insofar as it was denied relief sought in its plea of intervention.
West Lake Hills filed a motion for new trial on January 19. This motion was overruled by court order on February 20.
On January 26 Plaintiffs filed their appeal bond appealing from the judgment insofar as it denied them judgment invalidating the incorporation of West Lake Hills in its entirety.
Since Art. 2072, V.A.C.S. exempts the State and incorporated cities and towns from giving security for costs, the appeals of all parties were timely in the Trial Court.
On February 5 the Trial Judge entered a 'Corrected Final Judgment.' This judgment was identical with the judgment of January 9, including exceptions and notices of appeal, except that it rendered judgment for costs which was not done in the first judgment .
On February 11, Plaintiffs filed a motion for new trial as to the 'Corrected Final Judgment.'
On February 16, West Lake Hills filed a motion for new trial as to the 'Corrected Final Judgment.'
On February 20 the motions for new trial as to the 'Corrected Final Judgment' were overruled by court order.
On March 9, West Lake Hills filed notice under Rule 353, Texas Rules of Civil Procedure that it was appealing only from that portion of the final judgment in this cause which was adverse to it, as above indicated.
Transcript reflecting the above matters was filed in this Court on March 9.
On April 1 there was filed in this Court a supplemental transcript containing findings of fact and conclusions of law made by the Trial Judge, and incidental matters pertaining thereto.
On June 11 a supplemental transcript was filed here which included a judgment nunc pro tunc entered June 4 as of February 5 which changed the word 'invalid' as used in this partial sentence of such judgment, 'the original incorporation of territory south of Bee Creek into the City of West Lake Hills is hereby declared invalid' to 'valid.' This change was made on the motion of West Lake Hills to correct a clerical error in the February 5 judgment. A separate motion for entry of a judgment nunc pro tunc was filed by Plaintiffs . This motion was overruled except insofar as it was granted in response to the motion of West Lake Hills to correct a clerical error in the February 5 judgment.
On June 15 Plaintiffs filed notice of appeal from the judgment entered June 4 insofar as it denied them judgment 'invalidating the City of West Lake Hills in its entirety.' On the same day Plaintiffs filed their appeal bond from this judgment, limited as indicated in their notice of appeal.
We have stated the above details of the record for the reason that we must dispose of two motions to dismiss appeals, one filed by West Lake Hills to dismiss the appeals of Plaintiffs and State ex rel City of Austin and City of Austin, and one by Plaintiffs to dismiss the appeal of West Lake Hills.
West Lake Hills seeks to dismiss the appeal of Plaintiffs on the principal ground that this is a quo warranto proceeding and the record, under Rule 384, T.R.C.P. must be filed in this Court within twenty days after final judgment or order overruling motion for new trial. As to Plaintiffs this suit is not one in quo warranto. Plaintiffs do not have and do not claim to have the authority to bring quo warranto proceedings. Plaintiffs sued to prevent damages to their property by the City of West Lake Hills without due process of law. The fact that the Trial Judge in permitting quo warranto proceedings to be filed by the State on behalf of the City of Austin recited that it was thus 'making the suit in the nature of a quo warranto proceeding' does not alter the nature of the suit brought by Plaintiffs. The State did not purport to appear or pealed on behalf of Plaintiffs. We do not construe the language of the Trial Court to be other than that the suit was in the nature of a quo warranto proceeding insofar as the State made it so.
This was a sixty day appeal as to Plaintiffs. Rule 386, T.R.C.P. The record was filed on March 9 well within sixty days from February 5. This brings us to the attack made on this judgment. It is to be noted that this judgment was entered within 30 days from the date of the first judgment. During this period the judgment is not final and is subject to the control of the Trial Judge. Sec. 5, Rule 329b, T.R.C.P.; Ex parte Godeke, 163 Tex. 387, 355 S.W.2d 701 (1962); 4 McDonald, Texas Civil Practice, Sec. 1803. This is true even though an appeal has been perfected from the judgment. 33 Tex.Jur.2d, Judgments, Sec. 139, p. 662, and cases there cited.
The appeal bond filed by Plaintiffs on January 26 insofar as the judgment of February 5 is concerned is effective as a bond prematurely filed under Rule 306c, T.R.C.P. If this bond is in any was inadequate or defective, it may be amended. Rule 430, T.R.C.P.
The record discloses that the Trial Judge was concerned, upon the matter being called to his attention, that the judgment of January 9 was not a final judgment because of its failure to adjudicate costs. It was proper and within his sound discretion to eliminate this uncertainty. There is nothing to...
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Campbell v. Iltis
...pursuant to Rule 142. However, defects such as these are not jurisdictional and may be amended. Thompson v. City of West Lake Hills, 457 S.W.2d 398, 402 (Tex.Civ.App.--Austin 1970), rev'd on other grounds, 466 S.W.2d 722 Since neither of the defects asserted by appellee in his Motion to Aff......