
Opinion issued March 22, 2007

 
 









In The
Court of Appeals
For The
First District of Texas



NO. 01-04-00749-CV
  __________

WEBWORLD MARKETING GROUP, L.L.C., Appellant

V.

TOMMIE THOMAS, Appellee



On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2001-38341



DISSENTING OPINION ON REHEARING
 I respectfully dissent.  In his motion for rehearing, appellee, Tommie Thomas
("the Sheriff"), argues that we did not properly consider his cross-points in
overturning the judgment notwithstanding the verdict ("JNOV") rendered in his favor
and remanding the case to the trial court to enter judgment in accordance with the
verdict in favor of appellant, Webworld Marketing Group, L.L.C. ("Webworld").
	I believe that we did misconstrue the Sheriff's cross-points.  I also believe our
opinion lowers the standard of compliance with the applicable regulations governing
an application for a sexually oriented business permit ("SOBP") from strict
compliance to substantial compliance and places a burden on the Sheriff to construe
the regulations liberally in favor of the applicant for an SOBP, contravening the plain
language of the regulations and the intent of the county in enacting them.  I would
grant rehearing and affirm the JNOV rendered by the trial court.  
Relevant Facts
	The Sheriff argues in his cross-points and on rehearing that the trial court
properly entered judgment in his favor, notwithstanding the jury verdict in favor of
Webworld, and that it properly denied the mandamus sought by Webworld ordering
him to issue a Class I SOB permit for 22562 Interstate I-45 North in response to its
March 16, 2001 application.  He argues that, as a matter of law, Webworld failed to
comply with the applicable regulations for obtaining a permit and, therefore, he had
no duty to issue the permit.  He contends we should have considered the no-evidence
complaints not on the basis of whether there was sufficient evidence to support the
jury's answers to the questions in the jury charge--to which he had objected at
trial--but on the basis of the proper application of the law to the facts. 
	The applicable regulations are "The Regulations for Sexually Oriented
Businesses in the Unincorporated Area of Harris County, Texas and Application for
a CLASS I Permit" adopted August 6, 1996.  Harris County, TX., Ordinance 83-1812 (August 6, 1996) (hereinafter referred to as "Harris County Regulations").  A
Class I sexually oriented business enterprise is "a commercial enterprise the primary
business of which is the offering of a service or the selling, renting or exhibiting of
devices or any other items intended to provide sexual stimulation or sexual
gratification to the customer" that "conduct[s] business regularly at a specific
location." 
	As the Sheriff points out, section VIII(a) of the Harris County Regulations
requires that "[t]o obtain a Class I . . . SOBP, a complete application shall be filed
with the Sheriff," in the form provided by the Sheriff, whose contents are specified
for a Class I SOBP in sections VIII(b) and (e).  Section XII(e)(2) of the regulations
states that "[t]he SOBP shall be denied upon the finding by the Sheriff of any of the
following facts," including a finding that "the enterprise does not meet all the
requirements of these regulations" or a finding that "[t]he applicant has knowingly
made a misleading statement of a material fact by omitting or falsifying information
in the application for the SOBP."  
	Section VIII(b)(2) requires that an applicant for a Class I SOBP provide, in
relevant part:
			(2)	A general description of the enterprise, which shall include the
address of the enterprise and the services and products which will
be offered.
 
				(i)	A Class I SOBP shall be valid only for the address
provided in the application.

	Section VIII(e) requires that an applicant for a Class I SOBP also provide, in
relevant part:
	(4)	A certification that the proposed enterprise will be located:

				(i)	a minimum of one thousand five hundred (1,500) feet from
any child care facility, school, dwelling, hospital, public
building, public park, or church or place of religious
worship;

		. . . .

				(iv)	This subsection shall apply only to property uses in
existence at that location at least thirty (30) days prior to
the date of application.

	The Sheriff pled, inter alia, that Webworld had knowingly made a misleading
statement of material fact by providing an incorrect address for the SOBP it sought
on its March 19, 2001 application and by falsely certifying that the SOB was a
minimum of 1,500 feet from a dwelling, namely the residence over the Melvins'
parrot shop for whose use as dwelling permits had been sought and plans developed,
and where the Melvins had stayed from time to time. 
	The jury was asked (1) whether Webworld's proposed enterprise was located
a minimum of 1,500 feet from "any dwelling in existence at that location at least (30)
days prior to Webworld's application dated March 19, 3001" when "residence" was
defined as "personal presence at some place of abode . . . ."; (2) whether Webworld
"knowingly made a misleading statement of material fact by omitting or falsifying
information" in its March 19, 2001 application for an SOB; (3) whether the Sheriff
"arbitrarily" denied Webworld's March 19, 2001 application; and (4) "whether the
Sheriff acted in good faith in denying Webworld's March 19, 2001 application."
	The Sheriff objected that jury questions 1, 3, and 4 improperly applied the law,
there was no evidence to support the submission of the questions to the jury, and the
questions would lead to inconsistent answers.  Additionally, the Sheriff specifically
argued that question 1 was "incorrect because it doesn't explain that a dwelling also
includes intended or planned use of property" and that questions 3 and 4 were not
supported by the pleadings.  The trial court overruled each of these objections.  The
Sheriff also requested an instructed verdict at the conclusion of the case, which was
likewise overruled.
	Finally, in his Motion for JNOV, the Sheriff urged, "[T]here is no evidence that
the Sheriff arbitrarily denied Webworld's permit or acted in bad faith in light of the
fact that the Melvins had indicated in 1996 that they would use the property as a
residence."  The trial court granted the motion for JNOV.
	The Sheriff argues on appeal that the trial court properly took the case away
from the jury after the verdict because, having been given an erroneous charge over
counsel's objections, the jury responded with erroneous answers.  The Sheriff
contends he preserved error, and he urges us to apply the law the jury should have
applied and the trial court ultimately did apply.  I agree with the Sheriff's position.
Preservation of Error
	Texas Rule of Civil Procedure 324(c) provides:
	When judgment is rendered non obstante verdicto or
notwithstanding the findings of a jury on one or more questions, the
appellee may bring forward by cross-point contained in his brief filed in
the Court of Appeals any ground which would have vitiated the verdict
or would have prevented an affirmance of the judgment had one been
rendered by the trial court in harmony with the verdict, including
although not limited to the ground that one or more of the jury's findings
have insufficient support in the evidence or are against the
overwhelming preponderance of the evidence as a matter of fact . . . .  

	The failure to bring forward by cross-points such grounds as
would vitiate the verdict shall be deemed a waiver thereof . . . .

Tex. R. Civ. P. 324(c); accord Tex. R. App. P. 38.2(b).
	The Sheriff objected to the charge, moved for an instructed verdict, and moved
for judgment notwithstanding the verdict.  He then brought forth by cross-points his
grounds for vitiating the verdict, namely the legal insufficiency of the evidence and
the factual insufficiency of the evidence to support the jury's answers to questions 1,
3, and 4.  I would hold that the Sheriff preserved his legal sufficiency issues.  See
Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991) (legal sufficiency challenge may be
preserved by objection to charge and motion for instructed verdict).  Therefore, I
would address the Sheriff's argument that the evidence was legally insufficient to
prove that he had a duty to issue an SOB to Webworld.
Legal Sufficiency of the Evidence to Support the Verdict
 Standard of Review
	A "no evidence," or legal insufficiency, point of error is a question of law that
challenges the legal sufficiency of the evidence to support a particular fact finding. 
County of El Paso v. Dorado, 180 S.W.3d 854, 862 (Tex. App.--El Paso 2006, pet.
denied).  Because "no evidence" points are questions of law, they are reviewed de
novo.  State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327
(Tex. 2003).  In conducting a legal-sufficiency review, "we must view the evidence
in a light that tends to support the finding of disputed fact and disregard all evidence
and inferences to the contrary."  Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709
(Tex. 2003).  However, "[t]he final test for legal sufficiency must always be whether
the evidence at trial would enable reasonable and fair-minded people to reach the
verdict under review. . . . [L]egal-sufficiency review in the proper light must credit
favorable evidence if reasonable jurors could, and disregard contrary evidence unless
reasonable jurors could not."  City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005).  Thus, a no-evidence challenge will be sustained when "'(a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact, (c) the
evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the
evidence conclusively establishes the opposite of the vital fact.'"  King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc.
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). 
	Webworld's Compliance with Applicable Regulations
	On May 15, 2001, Webworld received a letter from the Sheriff denying its SOB
permit because (1) the SOB was within 1,500 feet of a dwelling; (2) Webworld had
knowingly made a misleading statement by providing an incorrect address for the
SOB; and (3) Webworld had knowingly made a misleading statement because the
proposed building would not fit in the lot area.  
 Webworld had to prove that it complied with all applicable regulations to
prevail in the trial court on its demand that the Sheriff be ordered to issue a Class I
permit for an SOB at 22562 Interstate I-45 North in response to its March 19, 2001
application.  See Harris County Regulations §§ XII(a), (e)(2).  Therefore, I would
inquire whether the evidence established Webworld's compliance with the applicable
Harris County Regulations cited by the Sheriff as grounds for denial of the SOBP.
Address
	Section VIII(b)(2)(I) of the county regulations provides, "A Class I SOBP shall
be valid only for the address provided in the application."  It is undisputed that both
Webworld's original March 16, 2001 application and its amended April 25, 2001
application certified the address for which the permit was sought as "222562
Interstate I-45 N."  Subsequently, Webworld obtained an address for the enterprise,
222465 Interstate North.  On June 19, 2001, Webworld wrote the Sheriff
acknowledging that the address was wrong on its SOB application, and it advised the
Sheriff of the new address.  However, it did not file an amended application for an
SOBP for 222465 Interstate I-45 North.
	I would hold that Webworld failed to comply with the regulatory requirement
that it list a correct address in its SOBP application and that the Sheriff had no duty
to issue a permit for construction of an SOB at an admittedly incorrect address. 
Webworld filed no application for an SOBP listing the correct address.  For this
reason alone, I would sustain the JNOV.  To hold otherwise, in my view, is to impose
an extra-statutory--and indeed contra-statutory--burden of due diligence on the
Sheriff to ascertain the correct address for which an SOBP is sought and to issue the
permit if an SOB at that address would satisfy county regulations.  I do not believe
the Harris County Regulations impose such a duty on the Sheriff; I believe its plain
language imposes a duty of strict compliance on the applicant for an SOBP.
Location Within 1,500 Feet of a "Residence"
	Section VIII(e)(4) of the regulations provides that an applicant for a Class I
SOBP must provide a certification that the proposed enterprise will be located "a
minimum of one thousand five hundred (1,500) feet from any child care facility,
school, dwelling, hospital, public building, public park, or church or place of
religious worship."  Section VIII(e)(4) also provides, however, that "[t]his subsection
shall apply only to property uses in existence at that location at least thirty (30) days
prior to the date of application."  Section III(o) provides that a "dwelling" is "a house,
duplex, apartment, townhouse, condominium, mobile home or any other building
used as a residence."  (Emphasis added).
	Webworld certified that the proposed enterprise would be located a minimum
of 1,500 feet "from any child care facility, school, dwelling, hospital, public building,
public park, or church or place of religious worship."  Since this requirement applies
only to property uses in existence at least 30 days prior to the date of application, and
since the Melvins had obtained a permit to develop the space over their parrot shop
for a dwelling in 1996, had used the space as a dwelling from time to time, and had
commenced plans for the development of the property as a dwelling more than 30
days before Webworld applied for a SOBP, Webworld's certification that the
enterprise would be located a minimum of 1,500 feet from a dwelling necessarily
implied that it did not consider the Melvins' activities sufficient to constitute the
"use" of the property as a dwelling.
	The Sheriff argues that, because the word "use" is not defined in the
regulations, the ordinary meaning of the word should be applied.  See Monsanto Co.
v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993).  He further
argues that the term "use" is broad and means to "put or bring into action or service;
to employ for or apply to a given purpose."  Mount Pleasant I.S.D. v. Lindburg, 766
S.W.2d 208, 211 (Tex. 1980); see also U.S. Steel Corp. v. Fiberglass Specialties, Inc.,
638 S.W.2d 950, 954 (Tex. App.--Tyler 1982, no writ).  Therefore, he argues that the
term extends to a property owner's present activities to develop a property for a
planned or intended use, including the Melvins' seeking permits and developing plans
for using the space over their parrot shop as a residence.  He also contends, as he did
below, that the instruction to Jury Question 1 was improper because it did not instruct
the jury to consider that a dwelling includes activities undertaken pursuant to an
intended or planned use of property.  Webworld responds that the Melvins' intent to
create a dwelling is not an element of the Ordinance and is thus irrelevant to the
inquiry of whether the parrot shop was a dwelling whose use as a residence was in
existence at least 30 days before the date of the SOB application.
	I agree with the Sheriff that the prohibition against issuing a permit for an SOB
within 1,500 feet of property used for certain specified purposes that are "in existence
at that location at least thirty (30) days prior to the date of application" applies not
only to fully realized uses of the property but also to property whose plans for an
intended use are "in existence" at least 30 days prior to the date of the application for
an SOB.  Otherwise, as the Sheriff points out, the County could be required to issue
a permit for an SOB within 1,500 feet of a school that had been in construction for
two years but that was not complete 30 days prior to the date of application. 
However, I would hold that there must be objective proof of the intended ultimate use
of the property for a purpose specified in section VIII(e)(4) of the regulations and
objective proof that, at least 30 days prior to the date of the application for an SOBP,
activities were underway to prepare the location for the intended ultimate use.  In
other words, there must be objective proof that an intended use of the property was
actually "in existence" for a given purpose and that a putative intended use is not a
mere pretext for denial of a SOBP.  The requirement that the use be "in existence" 30
days prior to the application for the SOBP seems clearly to have been intended to
preclude the use of a pretext to deny a SOBP, but there is nothing in the language or
the purpose of the regulation to suggest that the Commissioners intended that a use
"in existence" must be a fully realized use, and, indeed, any such construction of the
term would lead to the absurd results posited by the Sheriff.
	The evidence is undisputed that the Melvins applied for a permit expressing
their written intention to construct their residence and business in the building in
1996 and that they employed active means towards that intent by constructing plans
for the building and by residing over the parrot shop from time to time.  Webworld,
not the Sheriff, had the burden of proof that the SOBP it sought complied with all
regulations.  I would hold that Webworld failed to bear its burden of proof that the
application it sought was not within 1,500 feet of a residence and that it, therefore,
failed to satisfy the requirements for obtaining the Class I SOBP it sought.
	Because I would hold that Webworld failed to comply with the Harris County
Regulations both by listing an incorrect address in its March 19, 2001 SOBP
application and by falsely certifying that the proposed enterprise would not be located
within 1,500 feet of property whose planned use as a dwelling had been in existence
for at least 30 days prior to the date of the application, I would also hold that the
Sheriff had no duty to issue the SOBP and, indeed, was required to deny it.  See
Harris County Regulations § XII(e)(2),(3).  Therefore, I would not reach the Sheriff's
third cross-point, i.e., whether the proposed enterprise would fit on the property for
which the permit was sought.
Conclusion

	I would affirm the judgment of the trial court. 




							Evelyn V. Keyes
							Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.
Justice Keyes, dissenting.
