Opinion issued November 9, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00749-CV
__________
WEBWORLD MARKETING GROUP, L.L.C., Appellant
V.
TOMMIE THOMAS, Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2001-38341
OPINION ON REHEARING
The Court, after duly considering Tommie Thomas’s motion for rehearing, has withdrawn its opinion and judgment of May 25, 2006 and issued the following in its stead. Thomas’s motion for rehearing is hereby granted.
In this declaratory judgment action, a jury found that Tommie Thomas (“the Sheriff”) did not act in good faith when he arbitrarily denied Webworld Marketing Group, L.L.C.’s application for a Sexually Oriented Business (“SOB”) permit. The trial court granted the Sheriff’s motion for judgment notwithstanding the verdict (“JNOV”) and denied all relief Webworld sought against the Sheriff. In its sole point of error, Webworld contends that the trial court erred in granting the JNOV. We reverse and render.
Background
In March of 2000, Steve Fisher, managing director of Woodbridge Investment Company, purchased some property on which he wanted to establish a gentleman’s club. Fisher, who had experience with SOBs, was aware of the importance of finding land that was not within 1500 feet of any residential use because of the requirements to get a permit for an SOB. An SOB must apply for a permit under Chapter 243 of the Texas Local Government Code and Harris County Ordinance 83.1812.
In December of 2000, Webworld was formed to lease the land from Fisher and run the SOB. Within 1500 feet from the proposed SOB, there was a parrot shop owned by Joe Melvin and his wife. The Melvins had purchased this land in 1996 and applied for a permit to build first the shop on the ground level and then a garage apartment upstairs where they would live. They planned to do the construction slowly as funds became available to avoid going into debt. The Melvins stayed upstairs periodically, beginning in 1998 after the framing was completed, while they continued working on the building. The Melvins testified they stayed there, on average, two or three nights a month during this time. The Melvins also applied for a homestead exemption; however, because they already owned another home and could only have one homestead, the exemption was denied. Due to lack of funding, little progress was made on the building construction in 1999. However, the Melvins still lived at the shop occasionally throughout 1999. In March 2000, after he decided to purchase the land for the SOB, Fisher noticed the parrot shop and drove by it almost daily. It was his impression that no one was living there.
In March 2001, Fisher climbed a ladder in the middle of the day to investigate the Melvins’ upstairs property and took some pictures through the window. He could see all the way to the back wall and noticed that it was largely unfinished and appeared to be storage for the shop downstairs. He acknowledged that there was some sort of construction underway.
After his investigation, Fisher called Darla Gideon of Webworld and advised her that there was nothing in the parrot shop and that she should apply for the SOB permit. Gideon testified that she drove by the parrot shop “many” times between January 2001 and March 2001 and saw “no vehicles parked out front. No activity. The upstairs had no blinds or drapes on it.” There was a sign on the door, which clearly stated that the store would be closed during that time for approximately three months, as it was every year while the Melvins were on vacation.
On March 19, 2001, Webworld filed for the SOB permit and certified that there was no residence within 1500 feet of the SOB site. In accordance with the requirements for an SOB permit, Webworld sent letters to all property owners within the 1500 foot radius, advising them of its intention to establish the SOB. The property owners then had the opportunity to write a letter to the Sheriff with any objections to the SOB’s permit being issued. After receipt of this notice, the Melvins wrote a letter to the Sheriff explaining that their “residence” was above the parrot shop and within the 1500 foot radius.
On May 15, 2001, Webworld received a letter from Major Juan Jorge of the Sheriff’s office denying its SOB permit on the ground that it violated section VIII(e)(4) of the Ordinance because (1) the SOB was within 1500 feet of a dwelling, (2) Webworld had knowingly made a misleading statement by providing an incorrect address of the SOB, and (3) Webworld had knowingly made a misleading statement because “the proposed building which was to be a cabaret will not fit in the area of your lot area. . . .” Gideon testified that, after receiving Major Jorge’s letter, she made several telephone calls to Reliant Houston Lighting & Power (“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 poles and things like that.” Gideon was able to obtain the new address for the planned building on the Woodbridge property. Gideon explained that, when the application was filed, the land was “raw. Trees, mud, dirt, animals.” There was no building in place.
On June 19, 2001, Webworld’s attorney wrote a letter acknowledging that it had discovered that the address for the SOB was wrong on the application, and he advised the Sheriff of the correct address. Attached to the letter from Webworld’s lawyer were at least two documents. One was a map that Webworld had created of the property in question with the correct addresses in place. “Becky” from HL&P signed the map and stated that she agreed that the addresses were correct. The second was a letter from an engineering firm stating that it had designed the building and the building would fit on the pad site.
Gideon never heard back from the Sheriff. At all times relevant to Webworld’s application for an SOB permit, the Sheriff had actual knowledge of the build site’s location, and, at all times and with both addresses, the parrot shop was considered to be within 1500 feet of the building.
Webworld sought (1) the trial court’s declaration that Webworld met all required criteria for the issuance of an SOB permit and, correspondingly, (2) the trial court’s order requiring the Sheriff to issue the SOB permit to Webworld.
The case went to trial, and the jury was asked four questions in the charge. They were as follows:
Question Number 1
Was the location of Webworld’s proposed enterprise located a minimum of one thousand five hundred (1,500) feet from any dwelling in existence at that location at least thirty (30) days prior to Webworld’s application dated March 19, 2001?
A “dwelling” is a house, duplex, apartment, townhome, condominium, mobile home or any other building used as a “residence”.
The term “residence” means, personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently.
A person may have more than one residence.
Answer “Yes” or “No”:
Answer: [Yes]
Question Number 2
Did Webworld knowingly make a misleading statement of material fact by omitting or falsifying information in its application dated March 19, 2001 for a Sexually Oriented Business Permit?
Answer “Yes” or “No”:
Answer: [No]
Question Number 3
Did the Sheriff arbitrarily deny Webworld’s March 19, 2001 application for an SOB permit?
You are instructed that the Sheriff is required to state its reasons for the denial of the SOB permit in writing. You are further instructed that in this lawsuit, the Sheriff is not prohibited from presenting evidence of additional or alternative facts that support denial of the SOB permit.
Answer “Yes” or “No”:
Answer: [Yes]
Question Number 4
Did the Sheriff act in good faith in denying Webworld’s March 19, 2001 application for an SOB permit?
You are instructed that the Sheriff is required to state its reasons for the denial of the SOB permit in writing. You are further instructed that in this lawsuit, the Sheriff is not prohibited from presenting evidence of additional or alternative facts that support denial of the SOB permit.
Answer “Yes” or “No”:
Answer: [No]
After the jury answered all four questions in favor of Webworld, the Sheriff filed a motion for JNOV in which he alleged that there was legally insufficient evidence to support the jury’s finding on question number 1 because there was “no evidence that the planned use of the property was not as a part-time residence.” (Emphasis added.) He asserted that the photographs of the parrot shop “showed a completed structure that was capable of being used as a residence.” (Emphasis added.) The Sheriff also complained that there was legally insufficient evidence to support the jury’s finding on questions number 3 and number 4 because there was no evidence that the Sheriff arbitrarily denied the SOB permit or acted in bad faith “in light of the fact that the Melvins had indicated in 1996 that they would use the property as a residence.” The Sheriff further asserted that “these questions were not issues of fact which would be appropriate for the jury to decide.” The motion for JNOV did not address the jury’s finding in jury question number 2 that Webworld did not knowingly make a misleading statement of material fact by omitting or falsifying information in its application dated March 19, 2001 for an SOB permit.
Without stating its reasons, the trial court granted the motion for JNOV and denied Webworld’s writ of mandamus against the Sheriff. Webworld appeals this order. In its sole point of error, Webworld contends that the trial court erred in granting the Sheriff’s JNOV.
Intent
Webworld argues that the Melvins’ intent to create a dwelling is not an element of the Ordinance and is thus irrelevant to the inquiry of whether the parrot shop was a dwelling, whose use, as a residence, was in existence at least 30 days before the date of the SOB application.
We need not determine whether the intent to create is relevant because the jury was not asked to determine the significance of the Melvins’ intent.
JNOV
Webworld argues that the trial court erred in granting the JNOV because there was more than a scintilla of evidence to support the jury’s verdict.
Standard of Review
A trial court may grant a JNOV if there is no evidence to support one or more of the jury findings on issues necessary to liability. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). To determine whether there is no evidence to support a jury verdict, we view the evidence in a light that supports the challenged finding and disregard all evidence and inferences to the contrary. Id. Where an issue of fact is raised, a court may not grant JNOV where facts are controverted, or such that different inferences may reasonably be drawn therefrom. See Richardson v. Dallas Ry. & Terminal Co., 198 S.W.2d 475, 478 (Tex. Civ. App.—Waco 1946, no writ). It is the jury’s province to reconcile conflicting or contradictory evidence of the witnesses. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Transmission Exch. Inc. v. Long, 821 S.W.2d 265, 271 (Tex. App.—Houston [1st Dist.] 1991, writ denied). We may not substitute our opinion for that of the trier of fact. Id.
If more than a scintilla of evidence supports the finding, the jury’s verdict must be upheld. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). More than a scintilla of evidence exists when the evidence enables reasonable minds to differ in their conclusions. See Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004). Conversely, evidence that creates only a mere surmise or suspicion is no more than a scintilla and is, thus, no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Similarly, an inference that is stacked only upon other inferences, rather than direct evidence, is not legally sufficient evidence. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003).
More than a Scintilla
Let us now review the questions submitted to the jury.
Question Number 1
Was the location of Webworld’s proposed enterprise located a minimum of one thousand five hundred (1,500) feet from any dwelling in existence at that location at least thirty (30) days prior to Webworld’s application dated March 19, 2001?
A “dwelling” is a house, duplex, apartment, townhome, condominium, mobile home or any other building used as a “residence”.
The term “residence” means, personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently.
A person may have more than one residence.
Gideon testified that Ron Daugherty, her registered agent, went door-to-door to look for residences within 1500 feet of the pad site. Attached to the application were photographs and descriptions of the buildings located within 1500 feet of the proposed SOB. Gideon testified that the description of the parrot shop was as follows:
This 2-story building houses an office and related office equipment as well as an indoor retail facility for housing parrots and other exotic birds, feed, [and] related equipment. The building is currently empty as the owners and operators close for an approximate three-month period yearly from December to March. We have examined the premises. No one lives there or otherwise occupies the premises except for a few bird cages and related business items. There is no sign of any furniture, beds or any other indicia of anyone using this as a residence.
Gideon also testified that, between January 1 and March 19, 2001, she drove by the 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 told her anything different about the parrot shop.
On cross-examination, the Sheriff’s attorney asked Gideon if she had any evidence that the Melvins were not planning to build a residence on the top floor of the parrot shop as their 1996 permit reflected their intent to be. Gideon responded, “Well, there was no – there was no toilet, there was no running water, there was no electricity upstairs.”
Just considering the testimony from the first witness at trial, we hold that more than a scintilla of evidence exists to support the jury’s answer to question number 1.
Question Number 2
Did Webworld knowingly make a misleading statement of material fact by omitting or falsifying information in its application dated March 19, 2001 for a Sexually Oriented Business Permit?
In his motion for JNOV, the Sheriff did not contest the jury’s finding on question number 2. Regardless, Gideon testified that she signed the affidavit on the original application and that she did not lie or knowingly make any misrepresentation of any material fact. Accordingly, we hold that there was more than a scintilla of evidence to support the jury’s finding on question number 2.
On appeal, the Sheriff argues that, because Webworld originally provided the Sheriff with an inaccurate address on its application for the SOB permit, the Sheriff did not default in the performance of his legal duty. Importantly, at no time during trial or in any pleading filed by the Sheriff prior to trial did he raise such an issue for review. Accordingly, he has waived this argument.
The Sheriff contends that an opinion from this Court allows a trial court to grant a motion for JNOV on a ground not expressly asserted in the motion. See McDade v. Tex. Commerce Bank, 822 S.W.2d 713, 717 (Tex. App.—Houston [1st Dist.] 1991, writ denied). While McDade allows granting such a motion, the facts are easily distinguished from those before us.
In McDade, a retired bank officer filed suit against the bank for breach of contract, breach of fiduciary duty, negligence, and violation of the Deceptive Trade Practices Act after the bank opened a regular money market account instead of an IRA account as he had requested. Id. at 716. The jury returned a verdict in favor of McDade, the retired bank officer, and the bank filed a motion for JNOV. Id. The trial court entered a JNOV and found that, among other things, McDade’s claims were barred by the statute of limitations—an argument not raised in the bank’s motion for JNOV. Id. The jury questions, however, did address the date on which McDade should have discovered the bank’s error. Id.
Here, the trial court did not state the basis for its decision to grant the Sheriff’s motion for JNOV. This does not mean that the Sheriff can now assert any possible basis for the trial court’s holding. That would place Webworld in a completely defenseless posture. In its response to the Sheriff’s motion for JNOV, Webworld did not respond to the incorrect address argument because it was not raised in the Sheriff’s motion for JNOV. Now, on appeal, the Sheriff, as appellee, raises this argument for the first time. Our facts are distinguishable from McDade’s. Here, the jury was not asked to comment on the significance of the incorrect address, and the trial court did not state its reasons for granting the motion for JNOV.
Furthermore, although the address written on Webworld’s application for an SOB permit was incorrect, at all times relevant to this case, the Sheriff knew the actual location of the build site. Major Jorge testified that having the incorrect address on the application would not be the basis for denying a permit if (1) the location was known to the Sheriff’s department, (2) it knew which structures existed within 1500 feet of the proposed build site, and (3) the address was corrected in time. All distance measurements related to Webworld’s SOB permit application were taken from the build site’s correct location. There is no evidence that the incorrect address on Webworld’s SOB permit application misled the Sheriff. To the contrary, the evidence at trial revealed that, as soon as it discovered that the address was incorrect, Webworld notified the Sheriff of the correct address for this “raw” land where the proposed SOB site was planned.
Immaterial Jury Questions
On appeal, the Sheriff contends that all questions submitted to the jury were immaterial and thus ripe for a JNOV because Webworld’s June 19, 2001 letter to the Sheriff that indicated the corrected address for the SOB was, in fact, a separate and distinct SOB permit application. Again, the Sheriff did not present this argument to the trial court and he did not offer any proposed jury questions which treated the June 2001 letter as a separate application; therefore, the Sheriff’s argument regarding the materiality of the four jury questions was waived.
We sustain Webworld’s sole point of error.
Cross-Points
The Sheriff raises the following cross-points on appeal: (1) the trial court erred in submitting jury questions 1, 3, and 4 because there was no evidence to support their submission; (2) the trial court erred in failing to grant the Sheriff’s request for an instructed verdict because there was no evidence in support of Webworld’s claims for relief; (3) alternatively, if there was any evidence of probative value in support of Webworld’s claim, the evidence was factually insufficient to support the jury’s answers to questions 1, 3, and 4; and (4) alternatively, if there was any evidence in support of Webworld’s claim, the case should be remanded because the charge was erroneous.
When JNOV is granted, the appellee may bring forward by cross-point any ground, including factual sufficiency, which would have vitiated the verdict or prevented an affirmance of the judgment. Tex. R. Civ. P. 324(c); Tex. R. App. P. 38.2(b); Winograd v. Clear Lake City Water Auth., 811 S.W.2d 147, 159 (Tex. App.—Houston [1st Dist.] 1991, writ denied). The purpose of these rules is to require a final disposition of the case by the appellate court, where a JNOV is erroneously rendered by the trial court, on the basis of the record before it, and to order a remand only as to questions that require the taking of additional evidence. Jackson v. Ewton, 411 S.W.2d 715, 718 (Tex. 1967).
No Evidence
In cross-points one and two, the Sheriff contends that there was no evidence to support the submission of jury questions 1, 3, and 4 and that the trial court erred in failing to grant the Sheriff’s request for an instructed verdict. Having already determined that more than a scintilla of evidence existed to support the jury’s findings, we overrule cross-points one and two.
Factually Insufficient Evidence
In cross-point three, the Sheriff asserts that the evidence was factually insufficient to support the jury’s answers to questions 1, 3, and 4. A point in a motion for new trial is a prerequisite to a complaint on appeal that the evidence is factually insufficient to support a jury finding and that a jury finding is against the overwhelming weight of the evidence. Tex. R. Civ. P. 324(b)(2), (3); Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991). The record does not reflect that the Sheriff filed a motion for new trial and raised a factual sufficiency point, and, thus, the Sheriff has failed to preserve any factual sufficiency issues for our review. Cecil, 804 S.W.2d at 511–12. We overrule cross-point three.
Charge Error
In cross-point four, the Sheriff contends that the case should be remanded because the charge was erroneous. Specifically, the Sheriff complains of the trial court’s overruling his objection to the charge that “defined a dwelling without explaining that a dwelling also includes an intended or planned use of the property, and incorrectly applied the law.” We review the trial court’s decision to overrule the Sheriff’s objection for abuse of discretion. State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451 (Tex. 1997).
The submitted definition of “dwelling” stated as follows: “a ‘dwelling’ is a house, duplex, apartment, townhome, condominium, mobile home or any other building used as a ‘residence.’” The charge further defined “residence” as “personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently.” The definition of dwelling was taken directly from section IV(o) of the Ordinance.
The Sheriff also complains that “the question given to the jury on the controlling issue concerning the Melvin’s [sic] residence did not instruct the jury to consider the Melvin’s [sic] intended use of their proper [sic] in determining whether it was a residence despite Thomas’ objection.” We disagree. In fact, the definition of residence includes a statement regarding “personal presence at some place of abode with no present intention of definite and early removal.” (Emphasis added.)
Accordingly, we hold that the Sheriff has not shown that the trial court abused its discretion in overruling his objection to the charge. We overrule cross-point four.
Conclusion
We reverse the trial court’s judgment, and render judgment in accordance with the jury’s verdict.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.