                                       NO. 07-04-0024-CV

                                  IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL E

                                        MARCH 22, 2005

                              ______________________________


             RAND McPHERSON AND GEORGETTE McPHERSON, APPELLANTS

                                                V.

                        CITY OF LAKE RANSOM CANYON, APPELLEE


                            _________________________________

                 FROM THE 237 TH DISTRICT COURT OF LUBBOCK COUNTY;

                     NO. 99-506,390; HONORABLE SAM MEDINA, JUDGE

                             _______________________________


Before QUINN and REAVIS, JJ. and BOYD, S.J.1


                                   MEMORANDUM OPINION


       Rand McPherson and Georgette McPherson challenge the trial court’s judgment

declaring them to be in violation of Section 2 of Ordinance 46 of the City of Lake Ransom

Canyon, granting injunctive relief sought by the City, and severing their claims for malicious



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           John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
prosecution and abuse of process to be determined at a subsequent date. By their first five

issues, the McPhersons contend the trial court erred in granting summary judgment because

(1) the judgment failed to dispose of all claims of the parties in the record, (2) criminal

proceedings were pending upon alleged violations of the subject ordinances, (3) sections

54.012 and 54.018 of the Texas Local Government Code are the exclusive civil remedies for

enforcement of an ordinance regulating structures, (4) genuine and material issues of fact

regarding the City’s claim of violation of municipal ordinances existed, and (5) ordering removal

of the caboose is outside the scope of permissible declaratory relief. By their sixth issue, the

McPhersons contend the trial court erred in ordering a severance of the remaining claims. We

affirm.


          In 1996, the McPhersons purchased a tract of land in City of Lake Ransom Canyon,

Texas and built a residence there. At all times material here, City Ordinance 51, entitled

Substandard Building and City Ordinance 46, pertaining to Amendment of Building Code were

in effect.   According to the affidavit of the City Administrator, McPherson contacted the

Architecture Control Committee and stated he wanted to install a 1914 Burlington Northern

Caboose on his property to be used for storage and a bunkhouse/playhouse for grandchildren.

After consideration, the Committee denied the request. The McPhersons then took their

request to the City Council by personal appearance on May 13, 1997. Their request was

presented orally along with a written summary. However, because a motion was not presented,

no action was taken on the request for a permit.




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        The McPhersons made a second appearance before the City Council on July 1, 1997,

and renewed their request for a permit to move the caboose onto their property. Following

discussion, upon a motion to deny, the Council voted to deny the request. Then, without

obtaining a building permit or other authority, in February 1999, the McPhersons had concrete

pads installed on their property. Although a building official for the City observed the installation

of the concrete pads, he did not object to the work. Then, without obtaining a variance or

building permit, the caboose was placed on a trailer bed and moved to the McPherson’s

property. After the wheels were reattached, a crane was used to place the caboose on the

concrete pads. Commencing May 18, 1999, the City served the McPhersons with 15 citations

charging violations of Ordinance 46, Section 2, and Ordinance 51; however, the judgment does

not indicate the status of the citations on the docket of the municipal court.


       The citations prompted the McPhersons to file the underlying action seeking declaratory

judgment and damages. Among other things, they alleged that a building permit was not

required for the caboose project because it “represented a small and unimportant work, and the

City waived any requirement for a building permit.” They sought a declaratory judgment

declaring they had not violated any ordinances and the building official’s failure to “red tag” the

project constituted a “no objection” or waiver of Ordinance 46.            Also, the McPhersons

contended that Ordinances 46 and 51 were unconstitutionally vague and overly broad. In

addition, they sought attorney’s fees pursuant to section 36.009 of the Texas Civil Practice and

Remedies Code and filed a separate claim for damages for malicious prosecution. In addition

to its answer and special exceptions, the City likewise sought declaratory judgment seeking,



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among other relief, a determination that the McPhersons were in violation of Section 2 of

Ordinance 46, mandatory injunctive relief, and attorney’s fees.


       By its third amended motion for summary judgment, the City sought a declaration that

(1) the McPhersons were in violation of Section 2 of Ordinance 46 for (a) constructing a

concrete slab adjacent to their residence without obtaining a permit from the City or a variance

for non-requirement of a permit, and (b) moving and placing the caboose on the concrete slab

without obtaining a permit or variance, (2) there was no basis for the McPhersons’ claim of

malicious prosecution, or (3) there was no basis for their claims of abuse of process as a matter

of law. Following a hearing on the City’s motion, the trial court concluded:


       •      the McPhersons are in violation of Section 2 of Ordinance 46 in (a)
              constructing a concrete slab on their property without obtaining a permit
              from the City or a variance for non-requirement for permit and (b) in
              moving and placing a railroad caboose on the concrete slab on their
              property without obtaining a variance for non-requirement thereof;
       •      the McPhersons’ claims for malicious prosecution and abuse of process
              are separate and distinct and are properly severable;
       •      the McPhersons’ claims that Ordinance 51 is unconstitutional are not
              relevant or material to the determination of the City’s motion based on
              Section 2 of Ordinance 46;
       •      injunctive relief sought by the City to require the removal of the caboose
              and pad was proper under section 37.011 of the Tex. Civ. Prac. & Rem.
              Code; and


rendered judgment accordingly. Before commencing our analysis of the McPhersons’ issues,

we set forth the appropriate standards of review.




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                          Standard of Review–Summary Judgment


       In reviewing summary judgment, this Court must apply the standards established in

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985):


       1. The movant for summary judgment has the burden of showing that there is
       no genuine issue of material fact and that it is entitled to judgment as a matter
       of law.


       2. In deciding whether there is a disputed material fact issue precluding
       summary judgment, evidence favorable to the non-movant will be taken as true.


       3. Every reasonable inference must be indulged in favor of the non-movant and
       any doubts resolved in its favor.


For a party to prevail on a motion for summary judgment, he must conclusively establish the

absence of any genuine question of material fact and that he is entitled to judgment as a matter

of law. Tex. R. Civ. P. 166a(c). A movant must either prove all essential elements of his claim,

MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential element of the

non-movant's cause of action. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644

(Tex. 1995). Once the movant has established a right to summary judgment, the non-movant

has the burden to respond to the motion for summary judgment and present to the trial court

any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin

Authority, 589 S.W.2d 671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64

(Tex.App.--Houston [1st Dist.] 1996, writ denied). Issues which the non-movant contends

preclude the granting of a summary judgment must be expressly presented to the trial court by

written answer or other written response to the motion and not by mere reference to summary

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judgment evidence. McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993).

Issues not expressly presented to the trial court in writing shall not be considered on appeal as

grounds for reversal. Tex. R. Civ. P. 166a(c).


       By their first issue, the McPhersons contend the trial court erred in granting summary

judgment when the judgment failed to dispose of all claims of the parties. By their sixth issue,

they contend the trial court erred in ordering a severance of the claims of malicious prosecution

and abuse of process. Because we disagree as to both contentions and these two issues

implicate the severance of claims, we will consider them simultaneously.


       Pursuant to Rule 41 of the Texas Rules of Civil Procedure, the trial court was authorized

to sever claims. Severance of claims is proper if the (1) controversy involves more than one

cause of action, (2) severed claim is one that would be the proper subject of a lawsuit if

independently asserted, and (3) severed claim is not so interwoven with the remaining action

that they involve the same facts and issues. Guaranty Federal v. Horseshoe Operating, 793

S.W.2d 652, 658 (Tex. 1990). Also, we review the action of the trial court for abuse of

discretion. Id. at 658. Moreover, a trial court may grant a severance sua sponte. Rice v.

Travelers Express Co., 407 S.W.2d 534, 536 (Tex.Civ.App.--Houston 1966, writ ref’d n.r.e.).

Considering the claims for malicious prosecution and abuse of process were independent

claims and they were severed along with other issues, we are unable to hold the trial court

abused its discretion in severing those matters. Due to the severance of the claims, the

judgment challenged here is final and subject to appeal. Lehmann v. Har-Con Corp., 39 S.W.3d

191,195 (Tex. 2001). Issues one and six are overruled.


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       By their second issue, the McPhersons contend the trial court erred in granting summary

judgment and denying their plea to the jurisdiction on the City’s declaratory judgment action

when there were pending criminal proceedings on the subject ordinances. We disagree.

Section 54.012 of the Texas Local Government Code provides that a municipality may bring a

civil action for the enforcement of an ordinance. As we understand their contention, the

McPhersons assert that because the section does not authorize simultaneous criminal

prosecutions with civil enforcement proceedings, the City could not maintain its counterclaim

for declaratory judgment while the criminal prosecutions remained pending. In connection with

its argument, they cite City of Longview v. Head, 33 S.W.3d 47 (Tex.App.--Tyler 2000, no pet.);

however, that case is not controlling because the underlying civil proceeding was commenced

by the McPhersons after the citations for ordinance violations were issued and served.

Moreover, the City filed its answer and counterclaim for declaratory judgment as permitted by

the Texas Rules of Civil Procedure. Any error in this regard was therefore invited by the

McPhersons and may not be considered on appeal as grounds for reversal. See Bell v. Showa

Denko K.K., 899 S.W.2d 749, 760 (Tex.App.--Amarillo 1995, writ denied).          Issue two is

overruled.


       By their third issue, the McPhersons contend the trial court erred in granting summary

judgment when the exclusive civil remedy for enforcement of an ordinance would have been

pursuant to sections 54.012 and 54.018 of the Local Government Code and that a declaratory

judgment action and mandatory injunction was improper. We disagree.




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       By their multiple responses to the City’s motion for summary judgment, the McPhersons

did not expressly present to the trial court their contention that a mandatory injunction was not

available. Accordingly, this issue may not be considered on appeal as grounds for reversal.

Tex. R. Civ. P. 166a(c). See also McConnell, 858 S.W.2d at 341. Issue three is overruled.


       By their fourth issue, the McPhersons contend the trial court erred in granting summary

judgment because material issues of fact regarding their violation of the municipal ordinance

existed. By two sub-parts, they allege that issues of fact existed to prevent summary judgment

(a) on the City’s claim that the placement of the caboose violated Section 2 of Ordinance 46,

and (b) regarding unconstitutionally vague and broad language describing properties subject

to waiver of the permit requirement. We disagree. Before we commence our review of the two

sub-parts, we first note that because the record does not show that the McPhersons’ objections

to the summary judgment evidence presented by the City were presented to the trial court and

a ruling obtained thereon, they may not be considered on appeal. See Giese v. NCNB Tex.

Forney Banking Center, 881 S.W.2d 776, 782 (Tex.App.--Dallas 1994, no writ); McConnell, 858

S.W.2d at 343.


       Section 2 of Ordinance 46 provides:


       That Section 301(a) of the Uniform Building Code, 1976 Edition, as amended by
       the City of Lubbock, Texas, which Ordinance was adopted by the Village of Lake
       Ransom Canyon as its Building Code in Ordinance No. 17 and Section 2:1 of
       Ordinance No. 24 be and they are amended to read as follows:


               Permits required. No person, firm or corporation shall erect,
               construct, enlarge, alter, repair, move, improve, remove, convert,


                                               8
               or demolish any building or structure in the Village, or cause the
               same to be done, without first obtaining a separate building permit
               for each building or structure from the building official, except that
               upon application and authorization of the building official, a
               building permit may be waived for small and unimportant work.
               No permit will be required for normal repair and maintenance of
               any building nor shall a permit be required for erection of a fence
               or construction of a patio so long as any such structure would not
               constitute a violation of any other provision of the building code.


(Emphasis added).


       Sub-part (a). Waiver by Building Official. Per Section 2, upon application to the building

official, the official may waive the requirement of a permit for small and unimportant work.

According to the summary judgment evidence, in order to move the caboose to the McPherson

property, it’s size required that it be placed on a trailer by a crane, an oversize permit obtained

from the Texas Department of Transportation for movement on the highway and placement on

the McPhersons’ property by crane. Unlike the construction of a gazebo, a barbeque pit, or a

shed for lawn and garden hand tools without plumbing or electrical wiring, which some may

consider to be small and unimportant work, the summary judgment evidence considered in the

context of a residential subdivision does not raise a fact question that the construction of the

concrete pad and the placement of the caboose or the property was both small and unimportant

work. Accordingly, the fact that the building official did not red tag the project is not controlling

because the exception for “small and unimportant work” would not have been available.


       Sub-part (b). Vagueness challenge. Although our decision in sub-part (a) that no fact

question is presented that the installation of the caboose constituted “small and unimportant



                                                 9
work,” we briefly address the issue. The McPhersons did not apply to the building official for

a building permit on any ground. Instead, they appeared before the Architecture Control

Committee and twice before the City Council and their requests were denied. The decision of

the City Council is not subject to collateral attack as the McPhersons attempt here. See Carr

v. Bell Sav. & Loan Ass’n., 786 S.W.2d 761, 764 (Tex.App.--Texarkana 1990, writ denied).

Issue four is overruled.


       By their fifth issue, the McPhersons contend the trial court erred in granting summary

judgment ordering removal of the caboose which is outside the scope of permissible declaratory

judgment. We disagree.


       Pleadings frame the issues for determination. Murray v. O & A Express, Inc., 630

S.W.2d 633 (Tex. 1982). By its second amended cross-petition for declaratory judgment,

among other things, the City expressly sought mandatory injunctive relief to require the

McPhersons to remove the caboose. Notwithstanding this pleading, the McPhersons did not

challenge the appropriateness of injunctive relief by special exception. Accordingly, any

contention that injunctive relief would not lie was waived. See Tex. R. Civ. P. 90; J.K. & Susie

L. Wadley Research Inst. v. Beeson, 835 S.W.2d 689, 693 (Tex.App.--Dallas 1992, writ denied).

Further, by its third amended motion for summary judgment, the City also sought injunctive

relief. However, by their multiple responses to the City’s motion for summary judgment, the

McPhersons did not expressly present to the trial court their contention that an order requiring

removal by injunction was not appropriate. Accordingly, this issue may not be considered on




                                              10
appeal as grounds for reversal. Tex. R. Civ. P. 166(a)(c); see also McConnell, 858 S.W.2d at

341. Issue five is overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                                    Don H. Reavis
                                                       Justice




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