                        NUMBERS 13-11-00790-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

           EX PARTE THE CITY OF CORPUS CHRISTI, TEXAS


                    On appeal from the 94th District Court
                         of Nueces County, Texas.


                                      OPINION
              Before Justices Garza, Benavides, and Perkes
                       Opinion by Justice Perkes

      The City of Corpus Christi (“the City”) files this appeal challenging a final judgment

ordering that it take nothing by its suit and declaring that the Aquarius Road Project

proposed by the City did not comply with the language of a 2008 bond proposition

approved by voters. By four issues, the City argues: (1) the question submitted to the

jury was one of law and should not have been submitted to the jury; (2) the trial court

improperly denied the City’s judgment notwithstanding the verdict; (3) the trial court
improperly admitted evidence; and (4) the final judgment does not comply with the

pleadings. We reverse and render.

                             I. GENERAL BACKGROUND

       On August 19, 2008, the City Council passed an ordinance ordering a special

election for the purpose of authorizing “the issuance of obligations of the City supported

by ad valorem taxes for needed public improvements.” Proposition 1 contemplated

numerous road projects, including a new extension of Aquarius Street from Dasmarinas

to Commodore (the “Aquarius Road Project”), which is the subject of this dispute. More

specifically, Proposition 1 submitted for the voters’ determination:

       Shall the City Council of the City of Corpus Christi, Texas, be authorized to
       issue . . . public securities of the City . . . for the construction of permanent
       street improvements throughout the City, including, without limitation,
       construction, reconstructing, restructuring, and extending the streets,
       thoroughfares, sidewalks, streetscapes, collectors, and storm drains in said
       City, INCLUDING:
                                               ...

       * AQUARIUS STREET – DASMARINAS TO COMMODORE

Proposition 1, as drafted, called for the creation of a new street that would connect

Aquarius Street to Dasmarinas and Commodore Streets at some undefined point. The

ordinance does not include any further descriptive language for the Aquarius Road

Project, and it does not incorporate any other plats, plans, or other documents. No other

ordinance or resolution was passed authorizing or approving any other proposition to be

presented to the voters for the special election.

       On November 4, 2008, the City held its special election and voters approved

Proposition 1. On November 11, 2008, the City approved an ordinance declaring that all


                                              2
of the Propositions included in the special election passed. Thereafter, the City issued

“General Improvement Bonds” to be used for the projects included in the special election.

         In 2011, the City contracted with Urban Engineering to perform the design work for

the Aquarius Road Project, including preparation of road and utility designs. The Urban

Engineering design plans, however, did not use the existing right-of-way to connect the

Aquarius Street intersection on Dasmarinas to the Aquarius Street intersection on

Commodore. Rather, the design plans contemplated a new right-of-way which would

connect the Aquarius Street intersection on Dasmarinas to a future intersection a short

distance down on Commodore.                   Their design plans also called for abandoning the

existing right-of-way, and running the new Aquarius Street extension and utilities through

the previously platted, but undeveloped, portion of an existing subdivision.

         Mike Hummell and David Barabino1 filed a lawsuit (“Hummell lawsuit”) seeking

injunctive relief “to prohibit the City of Corpus Christ [sic] from moving forward in any way

with the construction of the sixty-foot boulevard that has been improperly proposed for

Aquarius between Dasmarinas and Commodore.” In addition, they alleged that the City

violated due process because it “ignored and consciously disregarded its own Charter, its

Comprehensive Plan, its Transportation Plan, its Future Land Use Plan[,] and its Platting

Ordinance . . . .” They further generally alleged that the ordinance calling for the special

election “utilized ambiguous language, Aquarius – Dasmarinas to Commodore”, but did

not otherwise indicate how the language was ambiguous.




         1
           Barabino filed a notice of nonsuit in the trial court prior to the entry of the final judgment, and is not
a party to this appeal.
                                                         3
       The City subsequently filed a lawsuit (“City lawsuit”) requesting an expedited

declaratory judgment pursuant to Chapter 1205 of the Texas Government Code

(Expedited Declaratory Judgment Act). See TEX. GOVT. CODE ANN. § 1205.151 (West

2000). The City sought to validate the 2008 bond election, the bonds issued and to be

issued, and the resulting contracts and related transactions. In addition, the City sought

a declaration that “all proposed actions to be taken by the City in the project involving the

extension of Aquarius Street between Dasmarinas and Commodore Street are legal and

valid.” The City also filed a motion to enjoin the prosecution and maintenance of any

proceeding contesting such matters, including the Hummell lawsuit, and to consolidate all

such actions in the City’s lawsuit. See id. § 1205.061 (“Court’s Power to Enjoin Other

Proceedings”). The City’s motion was granted.

       During the trial, the jury found that the “Aquarius Road Project that the City of

Corpus Christi proposes to construct [does not] comply with the language of the 2008

Bond Proposition 1 approved by the voters.” No other question was submitted for the

jury’s consideration.

       The trial court entered final judgment: (1) ordering that the City take nothing by its

lawsuit (“Hummell lawsuit”); and (2) declaring that the Aquarius Road Project that the City

proposes to construct does not comply with the language of the 2008 Bond Proposition 1

approved by voters. The final judgment, however, does not grant any injunctive relief for

any party, but rather denies all other relief requested. The trial court denied the City’s

motion for judgment notwithstanding the verdict, and severed all claims other than those

asserted regarding the Aquarius Road Project. This appeal ensued.


                                             4
                          II. JUDGMENT NOTWITHSTANDING THE VERDICT

       By its first issue, the City complains that the question submitted to the jury is a

question of law that the trial court should have decided.2 By its second issue, the City

argues the trial court erred by denying its motion for judgment notwithstanding the verdict

because there is no evidence that the proposed Aquarius Road Project did not comply

with the 2008 bond proposition which was approved by the voters. The City contends

that the uncontroverted evidence at trial conclusively shows the proposed Aquarius

Street extension would connect Dasmarinas to Commodore, as required by the City’s

ordinance.

A.     Standard of Review and Applicable Law

       The denial of a motion for judgment notwithstanding the verdict (hereinafter

“JNOV”) is reviewed under a legal sufficiency standard. See Tanner v. Nationwide Mut.

Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009). We “credit evidence favoring the jury

verdict if reasonable jurors could, and disregard contrary evidence unless reasonable

jurors could not.” Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.

2007). We must uphold the jury's finding if more than a scintilla of competent evidence

       2
           We note that, in relevant part, the trial court’s final judgment provides as follows:

       Based on the jury finding, the Court makes the following orders:

                IT IS ORDERED that the City of Corpus Christi take nothing by its suit;

               IT IS FURTHER ORDERED and the Court declares, that the Aquarius Road
       Project that the City of Corpus Christi proposes to construct does not comply with the
       language of the 2008 Bond Proposition approved by the voters . . .

                All other relief requested and not severed is DENIED.

On appeal, we construe the declaration of noncompliance with the bond language as being based on the
jury’s verdict as opposed to an independent conclusion of law the trial court made.

                                                       5
supports it. Tanner, 289 S.W.3d at 830. “The 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.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

Thus, in order to establish that it was entitled to JNOV, the City must show that the

evidence conclusively proved that the Aquarius Road Project complied with the 2008

bond language, and that no reasonable factfinder was free to think otherwise. See

Tanner, 289 S.W.3d at 830. “Evidence is conclusive only if reasonable people could not

differ in their conclusions, a matter that depends on the facts of each case.” City of

Keller, 168 S.W.3d at 816.

        Courts use the same rules when construing municipal ordinances as those used

when construing statutes. City of San Antonio v. Headwaters Coalition, Inc., 381 S.W.3d

543, 551 (Tex. App.—San Antonio 2012, pet. denied); see also Bd. of Adjustment of San

Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002). Courts construe statutes and

ordinances as a matter of law. Headwaters Coalition, 381 S.W.3d at 551; Arredondo v.

City of Dallas, 79 S.W.3d 657, 667 (Tex. App.—Dallas 2002, pet. denied). When the

construction of municipal ordinances is involved, as when statutory construction is

involved, our primary duty is to carry out the intentions of the municipality's legislative

body. Bolton v. Sparks, 362 S.W.2d 946, 951 (Tex. 1962); City of Dallas v. Blanton, 200

S.W.3d 266, 277 (Tex. App.—Dallas 2006, no pet.). We look first to the plain meaning of

the words. Wende, 92 S.W.3d at 430. If the language is unambiguous, we interpret the

ordinance using its plain language unless that interpretation leads to absurd results.

See Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d


                                            6
170, 177 (Tex. 2004).

       Proceeds of bonds voted by the people must be used for the purposes for which

they were voted.     Lewis v. City of Fort Worth, 89 S.W.2d 975, 978 (Tex. 1936);

Taxpayers for Sensible Priorities v. City of Dallas, 79 S.W.3d 670, 676 (Tex. App.—Dallas

2002, pet denied). However, the law does allow a governing body the right to exercise

its judgment and discretion. Lewis, 89 S.W.2d at 463. A city violates its contract with

the voters only if it uses tax proceeds approved by voters in a way the voters did not

approve. Putnam v. City of Irving, 331 S.W.3d 869, 878 (Tex. App.—Dallas 2011, pet.

denied).

B.     The Evidence

       Pete Anaya is the director of the City’s engineering services department. He

testified that the engineering services department is charged with the execution of the

Aquarius Road Project.      According to Anaya, the City’s proposed road extension,

Aquarius Street, would run from Dasmarinas to Commodore.                He opined that the

proposed plans comply with the November 2008 bond language, as approved by the

voters. According to Anaya, the City’s plan is the most direct route to get a fire engine

from the fire station to any structure on Aquarius Street that might be in need of a fire

truck, and that it is the best option with respect to public safety and costs.

       Hummell was a City Council member at the time the special election was

considered and passed. He testified that he did not agree with Anaya that the City’s plan

conformed to the bond issue language, and stated that he has not seen any ordinance

that would approve any alternate alignment plan for Aquarius Street.             On cross


                                              7
examination, Hummell agreed that Anaya’s trial drawing shows “Aquarius starting right

here at Dasmarinas ending at Commodore is Aquarius Street from Dasmarinas to

Commodore.” Hummell also testified, however, that directly connecting the two ends of

Aquarius Street is the only reasonable interpretation of the bond language under the

conditions as they existed at the time the public voted on the bond election. In support,

he offered three development plans that were admitted into evidence that the City Council

had adopted several years prior to the ordinance calling for the special election: (1)

Mustang-Padre Island Area Development Plan; (2) Urban (Unified) Transportation Plan;

and (3) Corpus Christi Future Land Use Plan. Each of the plans shows a connection of

the Aquarius Street intersection on Dasmarinas to the Aquarius Street intersection on

Commodore.

       Pat Veteto, an engineer with RVE, an engineering firm, testified the City contracted

with RVE to prepare “the cost estimate prior to the [2008] bond program, [but] not the road

design.” RVE followed the “preliminary plat layout” that was established years earlier by

the Urban (Unified) Transportation Plan.

       Rhodes Urban, an engineer with Urban Engineering, testified his firm did the

design and re-plat for the Aquarius Road Project. Urban Engineering prepared the

Right-of-Way Easement and Drainage Easement and related design work for this project.

Prior to their proposed realignment of Aquarius Street, there was a platted alignment in

place, going back to 1974. Urban testified, however, that the platted area, the Island

Fairway Estates, was never built and that it is still in its natural state. He agreed that the




                                              8
Aquarius Street realignment is an extension of Aquarius Street from Dasmarinas to

Commodore, and that it complies with the bond language.

C.      Discussion

        The interpretation of the ordinance at issue in this case concerns a question of

law.3 The city’s contract with the voters consists solely of the bond proposition itself, and

does not include extraneous documents and representations that were not expressly

made to the voters with respect to the bond issue.                      See Taxpayers for Sensible

Priorities,4 79 S.W.3d at 675. Our focus is solely on whether the City was attempting to

use tax proceeds approved by voters in a way not approved by voters. Id. at 676;

Headwaters Coalition, Inc., 381 S.W.3d at 552.

        In Headwaters Coalition, the San Antonio Court of Appeals stated that although

citizens were entitled to rely upon a city’s representation leading up to a bond election, the

proposition voted upon did not state with specificity how the improvements at issue would

be accomplished. 381 S.W.3d at 554. The court ultimately concluded that it was within

the city’s discretion to determine the actual plan to be accomplished under the bond

ordinance. Id.




        3
           We conclude that it was error for the trial court to submit this question of law to the
jury. Because the way to remedy an improper submission to the jury is through a motion for a judgment
notwithstanding the verdict, we proceed directly to the second issue.
        4
           In Taxpayers for Sensible Priorities v. City of Dallas, the plaintiffs alleged voters relied on
extraneous documents printed and distributed by City of Dallas staff without city council approval when they
voted to approve certain bond language. See 79 S.W.3d 670, 672–73 (Tex. App.—Dallas 2002, pet.
denied). By contrast, in this case, Hummell argues development plans the City formally adopted prior to
the vote on the bond language limit the City’s placement of the road, but no evidence in the appellate record
shows those limitations and that such representations were made to the voters. Though Hummell offered
additional evidence on this point in the trial court, the City objected to its admission and the trial court
sustained the objection. No cross-point is presented on appeal concerning the exclusion of evidence.
                                                     9
       Similarly, here, the bond proposition states it is for the construction of permanent

street improvements throughout the City, including “Aquarius Street – Dasmarinas to

Commodore.”     The evidence conclusively shows that the proposed Aquarius Road

Project provides for an extension of Aquarius between Dasmarinas and Commodore, and

that it complies with the ordinance’s unambiguous language. Although Hummell argues

that we should consider other maps and plans when we interpret the bond language, the

City’s ordinance for the special election did not specifically include or incorporate any

earlier map or plans, and we are constrained by existing law from considering extraneous

documents and representations. See Taxpayers for Sensible Priorities, 79 S.W.3d at

675. Thus, the trial court erred by not granting the City’s judgment notwithstanding the

verdict. We sustain issues one and two.

       In view of our holding, the City’s remaining issues are not dispositive and will not

be addressed. See TEX. R. APP. P. 47.1.

                                    III. CONCLUSION

       The trial court’s judgment is reversed and we render judgment (1) declaring that

the Aquarius Road Project the City proposed to construct complies with the language of

the 2008 Bond Proposition 1 approved by voters; and (2) Hummell take nothing by his

lawsuit.


                                                 GREGORY T. PERKES
                                                 Justice

Delivered and filed the
31st day of July, 2013.



                                            10
