Zoning Bd. of Adjustment of City of Lubbock v. Graham & Associates, Inc.

• Decision Date: 31 December 1983
• Docket Number: No. 07-82-0264-CV,07-82-0264-CV
• Parties: The ZONING BOARD OF ADJUSTMENT OF the CITY OF LUBBOCK, Tex., and Herman Guinn v. GRAHAM & ASSOCIATES, INC.
• Court: Texas Court of Appeals

Page 430

664 S.W.2d 430

The ZONING BOARD OF ADJUSTMENT OF the CITY OF LUBBOCK, Tex., and Herman Guinn v. GRAHAM & ASSOCIATES, INC.

No. 07-82-0264-CV.

Court of Appeals of Texas,

Amarillo.

Dec. 31, 1983.

Rehearing Denied Jan. 23, 1984.

Mick McKamie, City Atty., Greenville, McWhorter, Cobb & Johnson, David R. Langston and Brian P. Quinn, Lubbock, for appellants.

Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for appellee.

Before DODSON, COUNTISS and BOYD, JJ.

COUNTISS, Justice.

This is a controversy over the validity of a building permit issued by a City of Lubbock building inspector, revoked by Lubbock's Zoning Board of Adjustment and reinstated by the trial court. We reverse and render in part and affirm in part.

On December 30, 1980, a building housing a nightclub in Lubbock was partially destroyed by fire. Because of zoning changes enacted after the club opened, it was operating as a legal non-conforming use at the time of the fire. Under the Lubbock zoning ordinance, as quoted in the parties' briefs, a non-conforming use can continue, after reconstruction, if the expense of restoring the damaged structure does not exceed 75% of the replacement cost of the building. A Lubbock building inspector determined that the expense of restoring the building did not exceed 75% of the replacement cost and issued a building permit to Lester Shaver, owner of the property, on June 23, 1981.

Appellant Herman Guinn, who lived near the club, and others living in the area, did not want the non-conforming use to continue, because of problems caused by patrons of the club, and Guinn attempted unsuccessfully to prevent issuance of the permit. Before and after issuance of the permit, Guinn observed various activities on the premises, including the delivery in mid-August, 1981, of steel beams and the commencement of reconstruction work soon thereafter. After talking to various people and attending several hearings related to the matter, Guinn appealed the building inspector's decision to issue the permit. The appeal, to the appellant Zoning Board of Adjustment, was filed on December 29, 1981. By that date, Shaver had spent approximately $50,000.00 reconstructing the building.

The Zoning Board, after a hearing in February of 1982, revoked the building permit, concluding that restoration expenses would exceed 75% of replacement cost. Appellee Graham and Associates, Inc., lessee of the property in question, then petitioned the district court for a writ of certiorari, pursuant to article 1011g, Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1982), and asked the district court to reinstate the building permit, declare that the building could be completed and enjoin the Zoning Board from revoking the permit or interfering with the construction of the building. The relief sought by Graham & Associates was granted pursuant to its motion for partial summary judgment and Guinn and the Zoning Board then perfected an appeal to this court, attacking the trial court's judgment and injunction by various points of error.

Before we resolve the appellants' points of error, we must resolve a threshold issue. Graham & Associates has filed a motion to dismiss the appeal, contending that this is an accelerated appeal from a temporary injunction, and that Guinn and the Zoning Board did not perfect the appeal within the time limits required by Rule 385 of the Texas Rules of Civil Procedure. The issue is even broader than stated by Graham & Associates, however, because the judgment is based on a motion for "partial" summary judgment.

In order to resolve the problem, we must analyze several instruments in the record. By its original petition, Graham & Associates asked the trial court, as pertinent here, to

"enter judgment determining the rights of the parties, and declaring that the building permit heretofore issued by the Building Inspector be held valid and enforceable, and declaring that the building in question can be completed; ..."

It also asked for an injunction to enforce the foregoing relief. Graham & Associates subsequently moved for partial summary judgment, asking for the same relief quoted above. The judgment rendered by the trial court states, as pertinent here:

IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED by the Court that the Motion for Summary Judgment of the Defendant, Zoning Board of Adjustment of the City of Lubbock, is denied and that the Plaintiff's Motion for Partial Summary Judgment be, and the same is hereby granted and sustained, and it is ORDERED, ADJUDGED and DECREED by the Court that Building Permit No. 08239 for the construction of the building located on Lot 13, Block 7, C.C. Leftwich Addition to the City of Lubbock, Lubbock County, Texas is valid and enforceable and that the building in question may be completed in accordance with the provisions of such permit.

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IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Temporary Injunction sought by Plaintiff is granted and IT IS HEREBY ORDERED, ADJUDGED and DECREED that the Defendant Zoning Board of Adjustment (City of Lubbock, Texas) and the City of Lubbock, Texas and all officers, agents and employees thereof and all parties in privity with it, be, and are hereby temporarily enjoined and restrained from enforcing the decision of the Zoning Board of Adjustment of the City of Lubbock, Texas in revoking the Building Permit No. 08239 for the construction of the building located on Lot 13, Block 7, C.C. Leftwich Addition to the City of Lubbock, Lubbock County, Texas, or otherwise interferring with such construction, pending the completion of construction of such building.

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All other relief sought by any party herein not hereinabove granted is hereby denied.

The injunction issued by the trial court is consistent with the foregoing judgment and is entitled "Writ of Temporary Injunction."

We are required to determine, sua sponte, whether we have jurisdiction of an appeal. University Interscholastic League v. Payne, 635 S.W.2d 754, 755 (Tex.App.--Amarillo 1982, writ dismissed). Thus, the foregoing instruments present a dual problem: 1) is this an impermissible attempt to appeal from an interlocutory summary judgment, Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Com., 159 Tex. 550, 324 S.W.2d 200 (1959), and 2) is the injunction temporary and therefore not timely pursued in this court? Tex.R.Civ.Pro. 385. We conclude that both inquiries must be answered in the negative.

The general rule is that a judgment, to be final, must dispose of all issues and parties in the case. North East Independent School District v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). The name given the instrument is immaterial. If the judgment recites its own finality, but leaves parties unlitigated and issues unresolved, it is interlocutory. Springwoods Shopping Center, Inc. v. University Savings Association, 610 S.W.2d 177, 178 (Tex.Civ.App.--Houston 1980, writ ref'd n.r.e.). If, however, the judgment resolves all issues and the rights of all parties, it will be treated as a final judgment for appellate purposes, even if it purports to be an interlocutory decree. Highland Park State Bank v. Salazar, 555 S.W.2d 484, 486 (Tex.Civ.App.--San Antonio 1977, writ ref'd n.r.e.).

The same underlying principles are applicable to our resolution of the second problem. The courts examine the substance, not the form, of an injunction to determine whether it is permanent or temporary. Conway v. Irick, 429 S.W.2d 648, 649 (Tex.Civ.App.--Fort Worth 1968, writ ref'd). An injunction is temporary if it is effective "pending further order of the court." Aloe Vera of America, Inc. v. CIC Cosmetics International Corp., 517 S.W.2d 433, 435 (Tex.Civ.App.--Dallas 1974, no writ). Conversely, an injunction is permanent if the relief granted does not depend on any further order of the court, Aloe Vera of America, Inc. v. CIC Cosmetics International Corp., supra, or leaves nothing further to be litigated in the case. Owens v. Coker, 368 S.W.2d 959, 960 (Tex.Civ.App.--Beaumont 1963, no writ).

Graham & Associates brought this suit to prevent the Zoning Board from revoking the building permit or interfering with the reconstruction of the building. The summary judgment grants that relief and the injunction enforces it, leaving nothing further to be done in the trial court for or against any party to the suit. Emphasizing the finality of the relief is the concluding sentence of the judgment denying all relief not specifically granted. Therefore, we conclude that the judgment is final and the injunction permanent, vesting us with jurisdiction of the case. The motion to dismiss is denied.

In resolving the merits, we must focus initially on the timeliness of Guinn's appeal from the building inspector's decision to issue the building permit. Graham & Associates contended, as one of the grounds for its motion for summary judgment, that the appeal was not timely. Guinn, by his first three points of error and the Zoning Board, by its first two points, raise that issue here, contending that the appeal was timely or that any complaint about timeliness was waived.

The right to appeal the building inspector's decision is established by article 1011g(d), which states:

(d) Appeals to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality affected by any decision of the administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the Board, by filing with the officer from whom the appeal is taken and with the Board of Adjustment a notice of appeal specifying the grounds thereof.... [Emphasis added.]

Thus, this being a summary judgment proceeding, the specific question is whether Guinn's December 29, 1981 appeal of the June 23, 1981 decision to issue a building permit was, as a matter of law, not "taken within a reasonable time." If it was not timely, as the trial court...