Texas Judiciary Online - HTML Opinion

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Opinion issued March 22,=20 2007

In = The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO. 01-04-00749-CV

__________

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

TOMMIE THOMAS, Appellee

On = Appeal=20 from the 215th District Court

Harris County, Texas

Trial Court=20 Cause No. 2001-38341

OPINION ON=20 REHEARING

The Court, = after=20 duly considering Tommie Thomas's motion for rehearing, has = withdrawn its=20 opinion and judgment of November 9, 2006 and issued the following = in its=20 stead. Thomas's motion for rehearing is hereby granted.

In this=20 declaratory judgment action, a jury found that Tommie Thomas ("the = Sheriff") did not act in good faith when he arbitrarily denied = Webworld=20 Marketing Group, L.L.C.'s application for a Sexually Oriented = Business=20 ("SOB") permit. The trial court granted the Sheriff's motion for = judgment=20 notwithstanding the verdict ("JNOV") and denied all relief = Webworld sought=20 against the Sheriff. In its sole point of error, Webworld contends = that=20 the trial court erred in granting the JNOV. We reverse and remand. =

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. An=20 SOB must apply for a permit. See Tex. Loc. Gov't Code = Ann. =A7=20 243.007 (Vernon 2005); Harris County, Tx., Ordinance 83-1812 = (August 6,=20 1996).

In December=20 of 2000, Webworld was formed to lease the land from Fisher and run = the=20 SOB. Within 1500 feet of the proposed SOB, there was a parrot shop = owned=20 by Joe Melvin and his wife. The Melvins had purchased this land in = 1996=20 and applied for a permit to build first the shop on the ground = level and=20 then a garage apartment upstairs where they would live. They = planned to do=20 the construction slowly as funds became available to avoid going = into=20 debt. The Melvins stayed upstairs periodically, beginning in 1998 = after=20 the framing was completed, while they continued working on the = building.=20 The Melvins testified they stayed there, on average, two or three = nights a=20 month during this time. The Melvins also applied for a homestead=20 exemption; however, because they already owned another home and = could only=20 have one homestead, the exemption was denied. Due to lack of = funding,=20 little progress was made on the building construction in 1999. = However,=20 the Melvins still lived at the shop occasionally throughout 1999. = In March=20 2000, after he decided to purchase the land for the SOB, Fisher = noticed=20 the parrot shop and drove by it almost daily. It was his = impression that=20 no one was living there.

In March=20 2001, Fisher climbed a ladder in the middle of the day to = investigate the=20 Melvins' upstairs property and took some pictures through the = window. He=20 could see all the way to the back wall and noticed that it was = largely=20 unfinished and appeared to be storage for the shop downstairs. He=20 acknowledged that there was some sort of construction underway.=20

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 for approximately three months, as it was every year = while the=20 Melvins were on vacation.

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 receipt of this notice, the Melvins wrote a letter = to the=20 Sheriff explaining that their "residence" was above the parrot = shop and=20 within the 1500-foot radius.

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

On June 19,=20 2001, Webworld's attorney wrote a letter acknowledging that it had = discovered that the address for the SOB was wrong on the = application, and=20 he advised the Sheriff of the correct address. Attached to the = letter from=20 Webworld's lawyer were at least two documents. One was a map that = Webworld=20 had created of the property in question with the correct addresses = in=20 place. "Becky" from HL&P signed the map and stated that she = agreed=20 that the addresses were correct. The second was a letter from an=20 engineering firm stating that it had designed the building and the = building would fit on the pad site.^{=20
(1)}

Gideon=20 never heard back from the Sheriff. At all times relevant to = Webworld's=20 application for an SOB permit, the Sheriff had actual knowledge of = the=20 building site's location, and, at all times and with both = addresses, the=20 parrot shop was considered to be within 1500 feet of the = building.^{=20
(2)}

Webworld=20 sought (1) the trial court's declaration that Webworld met all = required=20 criteria for the issuance of an SOB permit and, correspondingly, = (2) the=20 trial court's order requiring the Sheriff to issue the SOB permit = to=20 Webworld.

The case=20 went to trial, and the jury was asked four questions in the = charge. They=20 were as follows:

Question Number 1

Was the=20 location of Webworld's proposed enterprise located a minimum of = one=20 thousand five hundred (1,500) feet from any=20 dwelling = in=20 existence at that location at least thirty (30) days prior to = Webworld's=20 application dated March 19, 2001?

A=20 "dwelling" is a = house, duplex,=20 apartment, townhome, condominium, mobile home or any other = building used=20 as a "residence".

The term=20 "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.

A = person=20 may have more than one = residence.

Answer=20 "Yes" or "No":

Answer:=20 [Yes]

Question Number 2

Did=20 Webworld knowingly make a misleading statement of material fact by = omitting or falsifying information in its application dated March = 19, 2001=20 for a Sexually Oriented Business Permit?

Answer=20 "Yes" or "No":

Answer:=20 [No]

Question Number 3

Did the=20 Sheriff arbitrarily deny Webworld's March 19, 2001 application for = an SOB=20 permit?

You are=20 instructed that the Sheriff is required to state its reasons for = the=20 denial of the SOB permit in writing. You are further instructed = that in=20 this lawsuit, the Sheriff is not prohibited from presenting = evidence of=20 additional or alternative facts that support denial of the SOB=20 permit.

Answer=20 "Yes" or "No":

Answer:=20 [Yes]

Question Number 4 =

Did the=20 Sheriff act in good faith in denying Webworld's March 19, 2001 = application=20 for an SOB permit?

Answer=20 "Yes" or "No":

Answer:=20 [No]

After the=20 jury answered all four questions in favor of Webworld, the Sheriff = filed a=20 motion for JNOV in which he alleged that there was legally = insufficient=20 evidence to support the jury's finding on question number 1 = because there=20 was "no evidence that the planned use of the property was = not as=20 a part-time residence." (Emphasis added.) He asserted that the = photographs=20 of the parrot shop "showed a completed structure that was = capable of=20 being used as a residence." (Emphasis added.) The Sheriff = also=20 complained that there was legally insufficient evidence to support = the=20 jury's finding on questions number 3 and number 4 because there = was no=20 evidence that the Sheriff arbitrarily denied the SOB permit or = acted in=20 bad faith "in light of the fact that the Melvins had indicated in = 1996=20 that they would use the property as a residence." The Sheriff = further=20 asserted that "these questions were not issues of fact which would = be=20 appropriate for the jury to decide." The motion for JNOV did not = address=20 the jury's finding in jury question number 2 that Webworld did not = knowingly make a misleading statement of material fact by omitting = or=20 falsifying information in its application dated March 19, 2001 for = an SOB=20 permit.

Without=20 stating its reasons, the trial court granted the motion for JNOV = and=20 denied Webworld's writ of mandamus against the Sheriff. Webworld = appeals=20 this order. In its sole point of error, Webworld contends that the = trial=20 court erred in granting the Sheriff's JNOV.

Intent

Webworld=20 argues that the Melvins' intent to create a dwelling is = not an=20 element of the Ordinance and is thus irrelevant to the inquiry of = whether=20 the parrot shop was a dwelling, whose use, as a residence, was in=20 existence at least 30 days before the date of the SOB=20 application.

We=20 need not determine whether the intent to create is relevant = because the=20 jury was not asked to determine the significance of the Melvins' = intent.^{=20
(3)}

JNOV

Webworld=20 argues that the trial court erred in granting the JNOV because = there was=20 more than a scintilla of evidence to support the jury's=20 verdict.

Standard of=20 Review

A=20 trial court may grant a JNOV if there is no evidence to support = one or=20 more of the jury findings on issues necessary to liability. = Tiller v.=20 McLure, 121 S.W.3d 709, 713 (Tex. 2003). To determine whether = there=20 is no evidence to support a jury verdict, we view the evidence in = a light=20 that supports the challenged finding and disregard all evidence = and=20 inferences to the contrary. Id. Where an issue of fact is = raised,=20 a court may not grant JNOV where facts are controverted, or such = that=20 different inferences may reasonably be drawn therefrom. See = Richardson=20 v. Dallas Ry. & Terminal Co., 198 S.W.2d 475, 478 (Tex. = Civ.=20 App.--Waco 1946, no writ). It is the jury's province to reconcile=20 conflicting or contradictory evidence of the witnesses. = Herbert v.=20 Herbert, 754 S.W.2d 141, 144 (Tex. 1988). The jury is the = sole judge=20 of the credibility of the witnesses and the weight to be given = their=20 testimony. Transmission Exch. Inc. v. Long, 821 S.W.2d = 265, 271=20 (Tex. App.--Houston [1st Dist.] 1991, writ denied). We may not = substitute=20 our opinion for that of the trier of fact. Id.

If more=20 than a scintilla of evidence supports the finding, the jury's = verdict must=20 be upheld. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d = 706, 709=20 (Tex. 2003). More than a scintilla of evidence exists when the = evidence=20 enables reasonable minds to differ in their conclusions. See = Tarrant=20 Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004).=20 Conversely, evidence that creates only a mere surmise or suspicion = is no=20 more than a scintilla and is, thus, no evidence. Ford Motor = Co. v.=20 Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Similarly, an = inference=20 that is stacked only upon other inferences, rather than direct = evidence,=20 is not legally sufficient evidence. See Marathon Corp. v.=20 Pitzner, 106 S.W.3d 724, 728 (Tex. = 2003).

More than a=20 Scintilla

Let us now=20 review the questions submitted to the jury.

Question Number 1

A=20 "dwelling" is a = house, duplex,=20 apartment, townhome, condominium, mobile home or any other = building used=20 as a "residence".

A = person=20 may have more than one = residence.

Answer:=20 (Yes)

Gideon=20 testified that Ron Daugherty, her registered agent, went = door-to-door to=20 look for residences within 1500 feet of the pad site. Attached to = the=20 application were photographs and descriptions of the buildings = located=20 within 1500 feet of the proposed SOB. Gideon testified that the=20 description of the parrot shop was as follows:

This=20 2-story building houses an office and related office equipment as = well as=20 an indoor retail facility for housing parrots and other exotic = birds,=20 feed, [and] related equipment. The building is currently empty as = the=20 owners and operators close for an approximate three-month period = yearly=20 from December to March. We have examined the premises. No one = lives there=20 or otherwise occupies the premises except for a few bird cages and = related=20 business items. There is no sign of any furniture, beds or any = other=20 indicia of anyone using this as a residence.

Gideon also=20 testified that, between January 1 and March 19, 2001, she drove by = the=20 parrot shop "many" times and saw "no vehicles parked out front. No = activity." The upstairs, which Gideon described as having "lots of = windows," had "no blinds or drapes on it." None of the other store = owners=20 told her anything different about the parrot shop.

On=20 cross-examination, the Sheriff's attorney asked Gideon if she had = any=20 evidence that the Melvins were not planning to build a residence = on the=20 top floor of the parrot shop as their 1996 permit reflected their = intent=20 to be. Gideon responded, "Well, there was no - there was no = toilet, there=20 was no running water, there was no electricity upstairs." =

Just=20 considering the testimony from the first witness at trial, we hold = that=20 more than a scintilla of evidence exists to support the jury's = answer to=20 question number 1.

Question Number 2

Did=20 Webworld knowingly make a misleading statement of material fact by = omitting or falsifying information in its application dated March = 19, 2001=20 for a Sexually Oriented Business Permit?

In his=20 motion for JNOV, the Sheriff did not contest the jury's finding on = question number 2. Regardless, Gideon testified that she signed = the=20 affidavit on the original application and that she did not lie or=20 knowingly make any misrepresentation of any material fact. = Accordingly, we=20 hold that there was more than a scintilla of evidence to support = the=20 jury's finding on question number 2.

On appeal,=20 the Sheriff argues that, because Webworld originally provided the = Sheriff=20 with an inaccurate address on its application for the SOB permit, = the=20 Sheriff did not default in the performance of his legal duty. = Importantly,=20 at no time during trial or in any pleading filed by the Sheriff = prior to=20 trial did he raise such an issue for review. Accordingly, he has = waived=20 this argument.

The Sheriff=20 contends that an opinion from this Court allows a trial court to = grant a=20 motion for JNOV on a ground not expressly asserted in the motion.=20 See McDade v. Tex. Commerce Bank, 822 S.W.2d = 713, 717=20 (Tex. App.--Houston [1st Dist.] 1991, writ denied). While = McDade=20 allows granting such a motion, the facts are easily distinguished = from=20 those before us.

In=20 McDade, a retired bank officer filed suit against the = bank for=20 breach of contract, breach of fiduciary duty, negligence, and = violation of=20 the Deceptive Trade Practices Act after the bank opened a regular = money=20 market account instead of an IRA account as he had requested. = Id.=20 at 716. The jury returned a verdict in favor of McDade, the = retired bank=20 officer, and the bank filed a motion for JNOV. Id. The = trial=20 court entered a JNOV and found that, among other things, McDade's = claims=20 were barred by the statute of limitations--an argument not raised = in the=20 bank's motion for JNOV. Id. The jury questions, however, = did=20 address the date on which McDade should have discovered the bank's = error.=20 Id.

Here, the=20 trial court did not state the basis for its decision to grant the=20 Sheriff's motion for JNOV. In its response to the Sheriff's motion = for=20 JNOV, Webworld did not respond to the incorrect address argument = because=20 it was not raised in the Sheriff's motion for JNOV; therefore, = there was=20 nothing to respond to. Now, on appeal, the Sheriff, as = appellee,=20 raises this argument for the first time. Our facts are = distinguishable=20 from McDade's. In McDade, the jury answers = addressed the=20 date on which McDade should have discovered the bank's error and = provided=20 the trial court with the information needed to determine whether = the claim=20 was barred by the statute of limitations. Here, the jury was not = asked to=20 comment on the significance of the incorrect address, and the = trial court=20 did not state its reasons for granting the motion for JNOV. =

Furthermore,=20 although the address written on Webworld's application for an SOB = permit=20 was incorrect, at all times relevant to this case, the Sheriff = knew the=20 actual location of the building site. = Major = Jorge=20 testified that having the incorrect address on the application = would not=20 be the basis for denying a permit if (1) the location was known to = the=20 Sheriff's department, (2) it knew which structures existed within = 1500=20 feet of the proposed building site, and (3) the address was = corrected in=20 time. All distance measurements related to Webworld's SOB permit=20 application were taken from the building site's correct location. = There is=20 no evidence that the incorrect address on Webworld's SOB permit=20 application misled the Sheriff. To the contrary, the evidence at = trial=20 revealed that, as soon as it discovered that the address was = incorrect,=20 Webworld notified the Sheriff of the correct address for this = "raw" land=20 where the proposed SOB site was planned.

Immaterial=20 Jury Questions

On appeal,=20 the Sheriff contends that all questions submitted to the jury were = immaterial and thus ripe for a JNOV because Webworld's June 19, = 2001=20 letter to the Sheriff that indicated the corrected address for the = SOB=20 was, in fact, a separate and distinct SOB permit application. = Again, the=20 Sheriff did not present this argument to the trial court and he = did not=20 offer any proposed jury questions which treated the June 2001 = letter as a=20 separate application; therefore, the Sheriff's argument regarding = the=20 materiality of the four jury questions was waived.

We sustain=20 Webworld's sole point of error.

Cross-Points

The Sheriff=20 raises the following cross-points on appeal: (1) the trial court = erred in=20 submitting jury questions 1, 3, and 4 because there was no = evidence to=20 support their submission; (2) the trial court erred in failing to = grant=20 the Sheriff's request for an instructed verdict because there was = no=20 evidence in support of Webworld's claims for relief; (3) = alternatively, if=20 there was any evidence of probative value in support of Webworld's = claim,=20 the evidence was factually insufficient to support the jury's = answers to=20 questions 1, 3, and 4; and (4) alternatively, if there was any = evidence in=20 support of Webworld's claim, the case should be remanded because = the=20 charge was erroneous.

When a JNOV=20 is granted, the appellee may bring forward by cross-point any = ground,=20 including factual sufficiency, which would have vitiated the = verdict or=20 prevented an affirmance of the judgment. Tex. R. Civ. P. 324(c); = Tex. R.=20 App. P. 38.2(b); Winograd v. Clear Lake City Water Auth., = 811=20 S.W.2d 147, 159 (Tex. App.--Houston [1st Dist.] 1991, writ = denied). The=20 purpose of these rules is to require a final disposition of the = case by=20 the appellate court, where a JNOV is erroneously rendered by the = trial=20 court, on the basis of the record before it, and to order a remand = only as=20 to questions that require the taking of additional evidence. = Jackson=20 v. Ewton, 411 S.W.2d 715, 718 (Tex. 1967).

No=20 Evidence

In=20 cross-point one, the Sheriff contends that the trial court erred = in=20 submitting jury questions 1, 3, and 4, because there was no = evidence to=20 support their submission. Having already determined that more than = a=20 scintilla of evidence existed to support the jury's findings, we = overrule=20 cross-point one.

Instructed=20 Verdict

In=20 cross-point two, the Sheriff argues that the trial court erred in = failing=20 to grant his request for an instructed verdict, because there was = no=20 evidence in support of Webworld's claims for relief.

A = denial of=20 a motion for directed verdict may be reversed where the evidence=20 conclusively proves a fact that establishes a party's right to = judgment as=20 a matter of law and there is no evidence to the contrary. See = McCarley=20 v. Hopkins, 687 S.W.2d 510, 512 (Tex. App.--Houston [1st = Dist.] 1985,=20 no writ). In reviewing the denial of an instructed verdict, we = consider=20 all the evidence in the light most favorable to the nonmovant and=20 disregard all evidence to the contrary. Harris County v. = Demny,=20 886 S.W.2d 330, 333 (Tex. App.--Houston [1st Dist.] 1994, writ = denied).=20 Every reasonable inference is resolved in favor of the nonmovant.=20 Id. If there is any conflicting evidence of probative = value on=20 any theory of recovery, the issue must go to the jury. Cliffs = Drilling=20 Co. v. Burrows, 930 S.W.2d 709, 712 (Tex. App.--Houston [1st = Dist.]=20 1996, no writ).

The Sheriff=20 makes no additional argument in his cross-point, but refers us to = his=20 argument found in response to Webworld's point of error = complaining of the=20 granting of the JNOV. In that argument, the Sheriff set out the = County=20 Regulations: (1) an SOB is prohibited in the County unless a = permit is=20 issued in accordance with the regulations; (2) an application must = include=20 an address, and permits are only valid for an address provided in = the=20 application; (3) there is a 1500-feet distance prohibition from = dwelling;=20 and (4) applicants must cooperate with the sheriff in = investigations to=20 confirm statements in the application.

The Sheriff=20 contends that Webworld admitted that the application and amended=20 application that it submitted did not contain the address for its=20 enterprise. He further contends that Webworld's June 2001 letter = in which=20 it provided the correct address, did not constitute a new = application=20 because there was no "certification" of distance. The Sheriff also = argues=20 that, because "it is undisputed that the Melvins had a structure = within=20 1500 feet of [Webworld's] proposed location that was being built = under a=20 1996 permit for a building which indicated in its application = would=20 include a residence," Webworld did not comply with the statutory = distance=20 requirements.

There is no=20 question that the Sheriff knew the physical location of the = proposed SOB.=20 At no time during the course of the application process did = Webworld=20 change its physical location--its proximity to the Melvins did not = change.=20 As the Sheriff noted, "the purpose intended by the legislature=20 for=20 giving the county power to adopt these regulations was to provide = the=20 county with a means of regulating the 'locations' of sexually = oriented=20 businesses." Lindsay v. Papageorgiou, 751 S.W.2d 544, 548 = (Tex.=20 App.--Houston [1st Dist.] 1988, writ denied). The "location" was = not=20 affected by the incorrect address provided by HL&P, placed on=20 Webworld's application, and corrected by Webworld when discovered. = With=20 respect to the distance requirements, we, again, refer to Gideon's = testimony that, after her inspector examined the property, he = noted that=20 "[t]here is no sign of any furniture, beds or any other indicia of = anyone=20 using this as a residence."

After=20 resolving every reasonable inference in favor of Webworld, we hold = that=20 the trial court did not err in denying the Sheriff's motion for = instructed=20 verdict. See Denny, 886 S.W.2d at 333. We = overrule=20 cross-point two.

Factually=20 Insufficient Evidence

In=20 cross-point three, the Sheriff asserts that the evidence was = factually=20 insufficient to support the jury's answers to questions 1, 3, and = 4.^{=20
(4)}

In=20 reviewing a factual-sufficiency point, we consider all the = evidence=20 supporting and contradicting the finding. Plas-Tex, Inc. v. = U.S. Steel=20 Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the = verdict only=20 if the finding is so contrary to the overwhelming weight of the = evidence=20 as to be clearly wrong and unjust. Cain v. Bain, 709 = S.W.2d 175,=20 176 (Tex. 1986).

Question Number 1

A=20 "dwelling" is a = house, duplex,=20 apartment, townhome, condominium, mobile home or any other = building used=20 as a "residence".

A = person=20 may have more than one = residence.

Answer=20 "Yes" or "No":

Answer:=20 [Yes]

The Sheriff argues = that=20 "Webworld's evidence that the Melvins' [sic] did not have a = residence in=20 use within 1500 feet of Webworld at least 30 days before the date = of=20 Webworld's application was so weak as to be factually = insufficient." He=20 contends that is was undisputed that the Melvins would stay = overnight at=20 the parrot shop from time to time over several years. Again, = reviewing=20 Gideon's testimony, alone, creates a fact issue as to the = classification=20 of the parrot shop as a residence. Gideon testified that her = inspector=20 provided the following description of the parrot shop:

This 2-story building = houses an=20 office and related office equipment as well as an indoor retail = facility=20 for housing parrots and other exotic birds, feed, [and] related = equipment.=20 The building is currently empty as the owners and operators close = for an=20 approximate three-month period yearly from December to March. We = have=20 examined the premises. No one lives there or otherwise occupies = the=20 premises except for a few bird cages and related business items. = There is=20 no sign of any furniture, beds or any other indicia of anyone = using this=20 as a residence.

Furthermore, as the=20 Sheriff pointed out, it was Daugherty's impression driving by in = late 2000=20 and early 2001 that no one lived there.

Fisher also=20 testified that, in March 2001, he and his son climbed a ladder and = looked=20 in the second floor windows. From the window, he could see corner = to=20 corner of the second floor, and he saw "bare stud walls, no = insulation, no=20 Sheetrock, no electrical or plumbing, no furniture, stored bird = cages."=20 Fisher concluded that "[i]t looked exactly like what it was, a = storage=20 place above a commercial building." The Sheriff questioned if = there was an=20 easier way for Fisher to determine the status of the = premises.

Q. Would it=20 have been a lot easier instead of climbing on that wobbly ladder = just to=20 check on the Internet under HCAD [Harris County Appraisal = District]=20 records and see what they were planning on doing with the second=20 floor?

A. I did=20 check the Internet records on HCAD. It showed F-1 commercial = property. I=20 did a visual inspection the same as I asked everybody else to do = to make=20 sure that there were no residence [sic]. This was not a residence. = This=20 was an empty 4-wall unfinished storage space.=20

We hold=20 that the jury's finding to question 1 was not so contrary to the=20 overwhelming weight of the evidence as to be clearly wrong and = unjust.=20 See Cain, 709 S.W.2d at 176.

Question Number 3

Did the=20 Sheriff arbitrarily deny Webworld's March 19, 2001 application for = an SOB=20 permit?

Answer=20 "Yes" or "No":

Answer:=20 [Yes]

Question Number 4 =

Did the=20 Sheriff act in good faith in denying Webworld's March 19, 2001 = application=20 for an SOB permit?

Answer=20 "Yes" or "No":

Answer:=20 [No]

The = Sheriff contends=20 that "the evidence that [he] acted arbitrarily or in bad faith = when [he]=20 denied Webworld's application of March 19, 2001 is so weak as to = be=20 manifestly unjust." In support of his argument, the Sheriff simply = states=20 that (1) because he received a letter from the Melvins noting that = they=20 live within 1500 feet of the proposed SOB and (2) because the = address on=20 the application was incorrect, the evidence is insufficient to = support the=20 jury's findings.

Major Juan=20 Jorge, bureau commander of the detective bureau in the Sheriff's = office,=20 testified that he is the one who sent the letter denying the = permit.=20 Webworld's attorney questioned him at length regarding the = application=20 process, the investigation that his office conducts, and the = acceptance or=20 denial of the permit. With respect to the incorrect address on the = application, Jorge testified that if the incorrect address was = just a=20 mistake, that would be no reason to deny an application. The = actual=20 address is "a minor issue." The most important thing is knowing = exactly=20 where the structure will be built so that the 1500-foot boundary = can be=20 determined. Jorge acknowledged that, before Webworld's application = was=20 denied, the Sheriff knew the physical location. He further = testified that=20 the incorrect address issue can be easily resolved, and that would = not be=20 the basis for denying an application.

Major Jorge=20 was then questioned about the classification of the parrot shop. = He=20 testified that he did not, personally, inspect the shop. He = conceded that=20 any inspection that was done would not have been initiated until = after the=20 application was filed on March 19, 2001, despite the fact that the = ordinance only applies "to property uses in existence at that = location at=20 least thirty (30) days prior to the date of application." Jorge = testified=20 that what the Melvins did to the structure after the application = date was=20 irrelevant. He explained that Brennan, his inspector, would have = to have=20 had information that, before March 19th, the Melvins were living = in the=20 parrot shop.

Melvin=20 submitted an affidavit wherein he testified that he and his wife = moved in=20 to the parrot shop in "early March 2001, although there were a few = times=20 in February when we stayed overnight." Also in March 2001, Fisher = climbed=20 a ladder and looked in the second floor window and saw "bare stud = walls,=20 no insulation, no Sheetrock, no electrical or plumbing, no = furniture,=20 stored bird cages." Importantly, the ordinance applied to property = uses in=20 existence at that location at least 30 days prior to March 19, = 2001--the=20 date Webworld filed its application.

The jury=20 was free to consider Jorge's admission that the incorrect address = would=20 not be a proper basis for denying a permit, and the jury was able = to=20 resolve the question of fact whether there was actually anyone = "dwelling"=20 within 1500 feet of the SOB at least 30 days before the = application in=20 light of Fisher's testimony that the property was rated a = commercial=20 property and his description that "[i]t looked exactly like what = it was, a=20 storage place above a commercial building." The jury resolved the = question=20 in favor of Webworld. Therefore, its finding that the Sheriff = acted=20 arbitrarily and in bad faith was not so contrary to the = overwhelming=20 weight of the evidence as to be clearly wrong and unjust. See=20 Cain, 709 S.W.2d at 176.

We overrule=20 cross-point three.

Charge=20 Error

In=20 cross-point four, the Sheriff contends that the case should be = remanded=20 because the charge was erroneous. Specifically, the Sheriff = complains of=20 the trial court's overruling his objection to the charge that = "defined a=20 dwelling without explaining that a dwelling also includes an = intended or=20 planned use of the property, and incorrectly applied the law." We = review=20 the trial court's decision to overrule the Sheriff's objection for = abuse=20 of discretion. See State Farm Lloyds v. Nicolau, 951 = S.W.2d 444,=20 451 (Tex. 1997).

The=20 submitted definition of "dwelling" stated as follows: "a=20 'dwelling' is a = house, duplex,=20 apartment, townhome, condominium, mobile home or any other = building used=20 as a 'residence.'" The = charge further=20 defined "residence" as "personal presence at some place of abode = with no=20 present intention of definite and early removal and with purpose = to remain=20 for undetermined period, not infrequently, but not necessarily = combined=20 with design to stay permanently." The definition of dwelling was = taken=20 directly from section IV(o) of the Ordinance.

The Sheriff=20 also complains that "the question given to the jury on the = controlling=20 issue concerning the Melvin's [sic] residence did not instruct the = jury to=20 consider the Melvin's [sic] intended use of their proper [sic] in=20 determining whether it was a residence despite Thomas' objection." = We=20 disagree. In fact, the definition of residence includes a = statement=20 regarding "personal presence at some place of abode with no = present=20 intention of definite and early removal." (Emphasis=20 added.)

Accordingly, we hold=20 that the Sheriff has not shown that the trial court abused its = discretion=20 in overruling his objection to the charge. We overrule cross-point = four.=20

Conclusion

We=20 reverse the trial court's judgment, and remand the case to the = trial court=20 for an entry of judgment in accordance with the jury's verdict.=20

George C.=20 Hanks, Jr.

Justice

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

Justice=20 Keyes, dissenting.

1. The = Ordinance does=20 not require that the building fit within the pad site.=20

2. Major Jorge testified that having the = incorrect=20 address on the application would not be a basis for denying a = permit if=20 (1) the location was known to the Sheriff's department, (2) the = department=20 knew which structures existed within 1500 feet of the proposed = building=20 site, and (3) the address was corrected in time.=20

3. The=20 Sheriff contends that, because he objected at trial, we must = measure the=20 sufficiency of the evidence against the definitions or = instructions that=20 the jury should have applied. See St. Joseph Hosp. v. = Wolff, 94=20 S.W.3d 513, 530 (Tex. 2002). While Wolff does stand for = the=20 proposition that only an unobjected-to charge will be used to = measure the=20 sufficiency of the evidence, it is presumed that the objected-to = charge is=20 successfully challenged by a point of error on appeal. Here, as = discussed=20 more fully below, we overrule the Sheriff's challenge to the jury = charge.=20

4. The prevailing party on a JNOV need not = file a=20 motion for new trial to preserve a factual sufficiency challenge.=20 See Tex. R. Civ. P. 324(c).=20

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