Texas Judiciary Online - HTML Opinion

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Opinion issued August 2,=20 2007

In = The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO.=20 01-04-00749-CV

__________

WEBWORLD=20 MARKETING GROUP, L.L.C., Appellant

TOMMIE=20 THOMAS, Appellee

On = Appeal=20 from the 215th District Court

Harris=20 County, Texas

Trial Court=20 Cause No. 2001-38341

OPINION ON=20 REHEARING

We = withdraw our=20 opinion and judgment of March 22, 2007 and issue the following in = its=20 stead.

Webworld=20 Marketing Group, L.L.C. ("Webworld"), appellant, filed this action = against=20 Tommy Thomas ("the Sheriff")^{=20
(1)}=20 alleging = that the=20 Sheriff unlawfully denied Webworld's application for a Sexually = Oriented=20 Business ("SOB") permit. At trial, a jury was asked to find "from = a=20 preponderance of evidence"^{=20
(2)} (1) whether the location of Webworld's proposed = enterprise=20 was located a minimum of 1500 feet from any dwelling in existence = at that=20 location at least 30 days before Webworld's application dated = March 19,=20 2001,=20 (2) whether Webworld knowingly made a misleading statement of = material=20 fact by omitting or falsifying information in its application for = an SOB=20 permit, (3) whether the Sheriff arbitrarily denied Webworld's = application=20 for an SOB permit, and (4) whether the Sheriff acted in good faith = in=20 denying the application for an SOB permit. All issues were = answered in=20 favor of Webworld. No conclusions of law were requested from nor = issued by=20 the trial court.

The Sheriff=20 filed a motion for judgment notwithstanding the verdict ("JNOV") = arguing=20 that there was legally insufficient evidence to support the jury's = findings on questions 1, 3, and 4. Without stating its reasons, = the trial=20 court granted the Sheriff's motion for JNOV and denied all relief = Webworld=20 sought against the Sheriff. In its sole point of error on appeal, = Webworld=20 contends that the trial court erred in granting the JNOV. We = affirm the=20 judgment of the trial court.

Background

In=20 March of 2000, Steve Fisher, managing director of Woodbridge = Investment=20 Company, purchased some property on which he wanted to establish a = gentleman's club. Fisher, who had experience with SOBs, was aware = of the=20 importance of finding land that was not within 1500 feet of any=20 residential use because of the requirements to get a permit for an = SOB.=20 See Tex. Loc. Gov't Code Ann. =A7 243.007 (Vernon 2005); = Harris=20 County, Tx., Ordinance 83-1812 (August 6, 1996) = ("Ordinance").

Within 1500=20 feet of the proposed SOB, there was a two-story parrot shop owned = by Joe=20 Melvin and his wife. Fisher drove by the parrot shop almost daily, = and it=20 was his impression that no one was living there. In December 2000, = Webworld was formed to lease the land from Fisher and run the SOB. = In=20 March 2001, Fisher climbed a ladder in the middle of the day to=20 investigate the Melvins' upstairs property and took some pictures = through=20 the window. He could see all the way to the back wall and noticed = that it=20 was largely unfinished, "bare stud walls, no insulation, no = Sheetrock, no=20 electrical or plumbing, no furniture, stored bird cages," and = appeared to=20 be commercial storage for the shop downstairs. He acknowledged = that it=20 looked like there was some sort of construction underway in the = space.=20 Fisher testified that he did an Internet check on Harris County = Appraisal=20 District website regarding the property which indicated that it = was an F-1=20 commercial property.

After his=20 investigation, Fisher called Darla Gideon of Webworld and advised = her that=20 there was nothing in the parrot shop and that she should apply for = the SOB=20 permit. Gideon testified that she drove by the parrot shop "many" = times=20 between January 2001 and March 2001 and saw "no vehicles parked = out front.=20 No activity. The upstairs had no blinds or drapes on it." There = was a sign=20 on the door, which clearly stated that the store would be closed = during=20 that time, December through March, for approximately three months, = as it=20 was every year while the Melvins were on vacation. Gideon also = testified=20 that none of the other store owners in the area told her anything=20 different about the parrot shop. Gideon testified that, before = filing the=20 application for the permit, she believed that there was no toilet, = running=20 water, or electricity in the upstairs of the parrot shop. =

On March=20 19, 2001, Webworld filed for the SOB permit and certified that = there was=20 no residence within 1500 feet of the SOB site. In accordance with = the=20 requirements for an SOB permit, Webworld sent letters to all = property=20 owners within the 1500-foot radius, advising them of its intention = to=20 establish the SOB. The property owners then had the opportunity to = write a=20 letter to the Sheriff with any objections to the SOB's permit = being=20 issued.

After=20 receipt of this notice, the Melvins wrote a letter to the Sheriff=20 explaining that they had a "residence" above the parrot shop = within the=20 1500-foot radius. In the letter, Mr. Melvin stated that he and his = wife=20 moved in as residents at the parrot shop "in early February of = [2001]" and=20 "had applied for and received an occupancy permit 4 years or so = ago." The=20 Melvins had purchased this land in 1996 and applied for a permit = to build=20 first the shop on the ground level and then a garage apartment = upstairs=20 where they would eventually live. As part of the permitting = process, the=20 Melvins submitted drawings to the City of Houston regarding the = planned=20 construction. The Melvins testified that they planned to do the=20 construction slowly as funds became available to avoid going into = debt.=20 The Melvins also testified that they stayed upstairs periodically, = beginning in 1998, after the framing was completed, while they = continued=20 working on the building. They stated that they stayed there, on = average,=20 two or three nights a month during this time. The Melvins also = applied for=20 a homestead exemption; however, because they already owned another = home in=20 Montgomery County and could only have one homestead, the exemption = was=20 denied. Due to lack of funding, little progress was made on the = building=20 construction in 1999. The Melvins testified that they still lived = at the=20 shop occasionally throughout 1999. They also testified that they=20 occasionally stayed at the shop between the Spring of 2000 and = December=20 24, 2000. In January 2001, Mr. Melvin testified that he paid = $22,000 to a=20 contractor to install dry wall and basic plumbing and do = electrical work=20 in the upstairs space.

The Sheriff=20 sent an investigator to the parrot shop to speak with the Melvins. = The=20 investigator went upstairs to inspect the property and requested = that the=20 Melvins provide an affidavit concerning the time that they spent = upstairs=20 in the parrot shop, recognizing that, if the parrot shop was a = dwelling on=20 or before February 19, 2001, the permit would be denied. In an = apparent=20 contradiction to his earlier letter to the Sheriff, Mr. Melvin = stated in=20 the affidavit that "there was a few times in February" = 2001 when=20 they stayed overnight at the parrot shop and that = "[f]or the=20 period of time beginning in March [2001], we live in the = residence"=20 above the parrot shop. (Emphasis added.) The affidavit also set = forth the=20 frequency of the Melvins' occupancy of the parrot shop during 2000 = and in=20 March 2001.

We first=20 began living in this building in Spring of 2000. After we moved = into the=20 building in Spring 2000, we moved out approximately December 24, = 2000. We=20 did not move in again until March 2001.

. = . .=20

From the=20 period of time beginning in March, we live in the residence above = the=20 parrot shop approximately 3 and =BD days a week, beginning = Thursday and=20 continuing through Sunday. Occasionally during this period of = Thursday=20 through Friday, however, we do stay at our Montgomery County=20 residence.

The=20 affidavit did not state that the Melvins had started residing in = the space=20 on February 19, 2001, 30 days before the date of the Webworld = permit=20 application.

On May 15,=20 2001, Webworld received a letter from Major Juan Jorge, detective = bureau=20 commander for the Sheriff, denying its SOB permit on the ground = that it=20 violated Section VIII(e)(4) of the Ordinance because (1) the SOB = was=20 within 1500 feet of a dwelling, (2) Webworld had knowingly made a=20 misleading statement by providing an incorrect address of the SOB, = and (3)=20 Webworld had knowingly made a misleading statement because "the = proposed=20 building which was to be a cabaret will not fit in the area of = your lot=20 area . . . ." Gideon testified that, after receiving Major Jorge's = letter,=20 she made several telephone calls to Reliant Houston Lighting & = Power=20 ("HL&P"), and she was told that, for the property in question, = HL&P had assigned "5, 6, 7 addresses. Some half addresses to = light=20 poles and things like that." Gideon was able to obtain the new = address for=20 the planned building on the Woodbridge property. Gideon explained = that,=20 when the application was filed, the land was ". . . raw. Trees, = mud, dirt,=20 animals." There was no building in place.

Just over=20 one month later, Webworld's attorney wrote a letter acknowledging = that it=20 had discovered that the address for the SOB was wrong on the = application,=20 and he advised the Sheriff's office of the correct address. = Attached to=20 the letter from Webworld's lawyer were at least two documents. One = was a=20 map that Webworld had created of the property in question with the = correct=20 addresses in place. "Becky" from HL&P signed the map and = stated that=20 she agreed that the addresses were correct. The second was a = letter from=20 an engineering firm stating that it had designed the building, and = the=20 building would fit on the pad site. Gideon never heard back from = the=20 Sheriff. At trial, the Melvins never testified as to the specific = date=20 that they started residing upstairs at the parrot shop in 2001. = Major=20 Jorge testified that, contrary to the statements in his letter = denying the=20 permit on May 15, 2001, he had no evidence that Webworld knowingly = made a=20 misstatement or a misleading statement of material fact by = omitting or=20 falsifying information on its SOB permit application. Major Jorge=20 testified that having the incorrect address on the application = would not=20 be a basis for denying a permit if (1) the location was known to = the=20 Sheriff, (2) his department knew which structures existed within = 1500 feet=20 of the proposed building site, and (3) the address was corrected = in time.=20 Major Jorge testified that, before denying the permit, the Sheriff = knew of=20 the location of the proposed SOB site, and he admitted that the = Sheriff=20 had to know of the physical location in order to determine whether = the=20 parrot shop was within 1500 feet of the proposed building. The = court also=20 heard testimony that the Ordinance does not require that the = proposed=20 building fit within the pad site.

The=20 Sheriff's investigator who inspected the upstairs space was no = longer=20 employed with the office at the time of trial, and no one at the = Sheriff's=20 office could testify as to what the space looked like 30 days = prior to=20 Webworld's application. However, four witnesses and an appraiser = for the=20 Harris County Appraisal District ("HCAD") testified to having been = upstairs in the shop prior to March 2001. Roberta Jaeger, a parrot = shop=20 customer, testified that, in 2000, the upstairs looked "like it = was being=20 lived in" with a bed that had bedding on it, an electrical hookup, = and a=20 basic toilet, and there was sheet rock on the walls when she = recalled=20 visiting the premises in the Spring of 2001. Charles Cashdollar, a = business associate of the Melvins, testified that, when he saw the = space=20 in 1999, it looked "three-quarters" of the way finished, with a = bed and=20 plumbing, and it looked like it had been lived in. He also = testified that,=20 in 1999 and 2000, he recalled seeing some furniture in the space. = Carl=20 Kluge, an appraiser with HCAD, testified that, in 1998, the = upstairs=20 looked like "a garage apartment type of situation." It looked like = the=20 electrical and plumbing were being "roughed in," and there were no = fixtures in at that time. He testified that, even if HCAD = designated the=20 building as commercial, a dwelling may exist on the property. = Joseph=20 Gueno, a parrot shop customer, testified that, at some time during = his=20 visits to the property in mid-1999 through 2000, he saw some = walls, air=20 conditioners, and cabinets that had been installed and a bed, a = dresser,=20 and some clothes. Larry Wilson, an employee of the Melvins who = also helped=20 them work on the upstairs space, testified that the space started = to look=20 like a "dwelling" in the Fall or Winter of 2000 and, by this time, = the=20 Melvins had been spending the night and placed some furniture in = the=20 space.

Substantial Evidence Rule

Although = the parties=20 did not address the issue of jurisdiction in several rounds of = briefing,=20 it is well established that in cases such as this involving a suit = for=20 judicial review to a district court from an order of an = administrative=20 agency, the district court, in reaching its decision, is bound by = the=20 substantial evidence rule. City of Dallas v. Furrh, = 541=20 S.W.2d 271, 273 (Tex. Civ. = App.--Texarkana 1976, = writ ref'd = n.r.e.); = City of=20 Dallas v. Stevens, 310 S.W.2d 750, = 755=20 (Tex. Civ. App.--Dallas 1958, writ ref'd = n.r.e.).^{=20
(3)}=20

Neither = the trial=20 court nor the court of appeals has been granted the authority by = the State=20 of Texas to review the agency's factual determinations under any = other=20 standard. As the = Texas Supreme=20 Court explained in Thomas v. Stanolind Oil & Gas Co., = the=20 review of agency decisions is not handled like other typical civil = matters:

A=20 proceeding of this nature is not comparable to a proceeding in an = ordinary=20 civil suit in which the fact findings of the jury are attacked on = the=20 ground of the insufficiency of the evidence to sustain them. = In that=20 proceeding, trial courts and courts of civil appeals are clothed = with the=20 authority, not possessed by this court, to set aside such findings = if they=20 are thought to be against the great weight and overwhelming = preponderance=20 of the evidence. But those courts are not clothed with authority = to set=20 aside fact findings of an administrative agency made within the = scope of=20 its statutory powers on that ground. The Legislature has clothed=20 administrative agencies with special powers to perform special = functions=20 and in reviewing fact findings of such agencies no question of = the=20 preponderance of the evidence is involved. The question is = whether or=20 not there is any substantial evidence affording reasonable support = for=20 such findings and the orders entered thereunder. That is a = question of=20 law of which this court, along with the lower courts, has=20 jurisdiction and in the exercise of that jurisdiction we = consider the=20 record before us.

198 S.W.2d=20 420, 421 (Tex. 1946) (emphasis added). =

Under=20 the substantial evidence rule, the party seeking to set aside an = agency's=20 order has the burden of proving that it is not supported by = substantial=20 evidence. See Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. = 1986).=20 "Substantial evidence is more than a mere scintilla, but less than = a=20 preponderance of the evidence." City of Houston v. Tippy, = 991=20 S.W.2d 330, 334 (Tex. App.--Houston [1st Dist.] 1999, no pet.). = Under this=20 rule, if the = evidence=20 before the court, taken as a whole, is such that reasonable minds=20 could have reached the same conclusion reached by the = agency,=20 then the order must be sustained. Trapp = v. Shell=20 Oil Co., 198 S.W.2d 424, 440-41 (Tex. 1946); White v. = City of=20 Dallas, 517 S.W.2d 344, 348 (Tex. Civ. App.--Dallas 1974, no = writ).=20 The court reviewing the agency's decision must not put itself in = the=20 position of the agency and substitute its findings for that of the = agency=20 even if it concludes that the overwhelming preponderance of = evidence=20 is against the agency's decision. City of San Angelo v. = Boehme=20 Bakery, 144 Tex. 281, 286-87, 190 S.W.2d 67,70 (Tex. 1945). = The=20 determination of whether an agency's decision was supported by = substantial=20 evidence is a question of law to be reviewed de novo by the = district court=20 and the court of appeals. See Thomas, 198 S.W.2d at 421.=20

"An = administrative=20 decision is generally not arbitrary and capricious if it is = supported by=20 substantial evidence." Hinkley v. Tex. State Bd. of Med. = Exam'rs,=20 140 S.W.3d 737, 743 (Tex. App.--Austin 2004, pet. denied) (citing=20 Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex. 1966)). = "However=20 instances may arise in which the agency's action is supported by=20 substantial evidence, but is arbitrary and capricious nonetheless. = One=20 such instance is when a denial of due process has resulted in the=20 prejudice of substantial rights of a litigant." Id. = (quoting=20 Health Facilities Comm'n v. Charter Med-Dallas, Inc., 665 = S.W.2d=20 446, 454 (Tex. 1984)).=20 As=20 Texas courts have held, the agency decision must be remanded if = the court=20 concludes that "the agency has not actually taken a hard look at = the=20 salient problems and has not genuinely engaged in reasoned=20 decision-making." Starr County v. Starr Indus. Servs., = Inc., 584=20 S.W.2d 352, 356 (Tex. Civ. App.--Austin 1979, writ. ref.d=20 n.r.e.).

Analysis

Under the=20 substantial evidence rule, as a matter of law, there was = substantial=20 evidence introduced in the trial court which reasonably supported = the=20 Sheriff's denial of a permit to Webworld. = As noted = in=20 Sections I = and II of=20 the Ordinance, the State of Texas has granted Harris County the = authority=20 to regulate sexually oriented businesses within its jurisdiction = and to=20 make factual determinations regarding the regulation of such = entities. The=20 Harris County Commissioners Court has delegated this authority to = the=20 Sheriff. As also noted in Section II, the State of Texas has = provided for=20 a suit for judicial review of the factual determinations made by = the=20 Sheriff under the Ordinance. This review is to be made = only under=20 the substantial evidence rule.

Pursuant to=20 Section VIII(e)(4) of the Ordinance, the Sheriff may deny a permit = to=20 operate an SOB that is not located a minimum of 1500 feet from any = dwelling in existence at that location at least 30 days prior to = the date=20 of the application for the permit.^{=20
(4)} At trial, the Sheriff presented more than a = scintilla of=20 evidence to the trial court to support his conclusion that the = Melvins had=20 taken up residence at the parrot shop by February 19, 2001, 30 = days prior=20 to the filing of Webworld's permit application, and it was = undisputed that=20 the parrot shop was within 1500 feet of the proposed SOB. = Reasonable minds=20 could have reached these same factual findings based on the = evidence=20 presented regarding the Melvins' stays at the shop, the = improvements in=20 the upstairs area as a residence and the = Melvins'=20 first letter to the Sheriff. These facts are a valid basis under = the=20 Ordinance to deny the permit. A review of the entire record also=20 established that the Sheriff presented evidence that he followed=20 established internal procedures in investigating the Melvins' = claims of=20 residing at the parrot shop. While it is troubling that the = Sheriff could=20 not explain all of the statements in his letter to Webworld = denying the=20 permit application or why he did not respond to subsequent letters = from=20 Webworld, the Sheriff's actions did not deny Webworld with its = right to=20 due process.^{=20
(5)} = Accordingly, the=20 Sheriff's conduct was not arbitrary or capricious.

In = Stevens,=20 the Dallas Court of Civil Appeals addressed factual and procedural = circumstances analogous to those in this case. = Stevens,=20 310 S.W.2d at 751-52. In = Stevens,=20 the plaintiff sued the chief of police for failing to issue a = permit for a=20 dance hall pursuant to a city ordinance because the Chief found = that the=20 dance hall constituted a public nuisance. The trial court = submitted, under=20 a preponderance of evidence standard, the issues of whether the = dance hall=20 constituted a public nuisance and whether the chief's conduct was=20 arbitrary and capricious. The jury found in favor of the = plaintiff. Citing=20 the=20 Texas Supreme Court's opinion in Thomas v. Stanolind Oil & = Gas=20 Co., the court = of civil=20 appeals reviewed the jury verdict and held that = both it=20 and the trial court could only review the chief's decision under = the=20 substantial evidence rule as a matter of law, not under a = preponderance of=20 the evidence standard. Stevens,=20 310 S.W.2d at 755. Disregarding the=20 jury verdict, the court of civil appeals found that there was = substantial=20 evidence supporting the chief's decision and held that the trial = court=20 should have entered a judgment in favor of the chief. We reach the = same=20 conclusion in this case. Having reached this conclusion, we need = not=20 address the Sheriff's appellate points.

Conclusion

Accordingly,=20 we affirm the trial court's judgment in favor of the=20 Sheriff.

George C.=20 Hanks, Jr.

Justice

Panel=20 consists of Justices Nuchia, Keyes, and Hanks.

Justice=20 Keyes, concurring and dissenting.

1. The = caption on this=20 appeal as filed spells the Sheriff's name "Tommie Thomas." We use = the=20 correct spelling in the body of both the majority opinion and the=20 concurring and dissenting opinion.=20

2. At trial, = neither=20 party objected to the court's instruction that the issues be = considered by=20 the jury under the "preponderance of evidence" standard. =

3. Subject-matter=20 jurisdiction concerns a court's power over cases. It stems from = the=20 doctrine of separation of powers, and aims to keep the judiciary = from=20 encroaching on subjects properly belonging to another branch of=20 government. Subject-matter jurisdiction cannot be waived or = conferred by=20 agreement, must be considered by a court sua sponte, and = can be=20 raised for the first time on appeal. See Tex. = Ass'n of=20 Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.=20 1993).

4. Under the = Ordinance,=20 a "dwelling" is a = house, duplex,=20 apartment, townhome, condominium, mobile home or any other = building used=20 as a "residence."=20 The term "residence" = means,=20 personal presence at some place of abode with no present intention = of=20 definite and early removal and with purpose to remain for = undetermined=20 period, not infrequently, but not necessarily combined with design = to stay=20 permanently.=20

5. Webworld = does not=20 allege that the Sheriff violated its rights under either the = United States=20 or Texas constitutions in denying its permit.=20

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FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: red } .buttonUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #fff5d7; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #576a9d; font-face: Tahoma, Arial, Helvetica, = sans-serif } .buttonTanUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #576a9d; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #fff5d7; font-face: Tahoma, Arial, Helvetica, = sans-serif } .TextLargeBlue { FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_001C_01C7E1BF.0C348480--