Opinion
No. 06-08-00049-CV
Date Submitted: June 17, 2008.
Date Decided: June 18, 2008.
On Appeal from the 62nd Judicial District Court Lamar County, Texas, Trial Court No. 75652.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
Todd Stephens, individually and doing business as Stephens and Sons, was conducting a business within the corporate limits of the City of Reno, Texas, wherein he was removing dirt from the premises and transporting it elsewhere. The City obtained a temporary restraining order to prohibit this practice on the basis that the operation was in violation of a city ordinance.
The City then filed a motion for summary judgment and the trial court denied that motion. The City has filed an appeal from that order. In an unusual twist for such an order, the trial court denied the City's motion for summary judgment, but then made findings of fact and conclusions of law on the issues that had been raised by Stephens's pleadings, finding in favor of Stephens on all grounds. The case involved the application of a city ordinance to Stephens's business, and whether the operation of the business as a nonconforming use was permitted to continue in operation of that use.
A nonconforming use is "one that lawfully existed before the effective date of a zoning restriction and that is allowed to continue to exist in nonconformance with the restriction." Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 429 (Tex. 2002).
The first question which we must examine is whether we have jurisdiction over this appeal. It is axiomatic that a party cannot appeal from a denial of a motion for summary judgment because it is interlocutory and, therefore, not appealable. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994); Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980). The complained-of order contains no language indicating finality and the reporter's record contains no evidence at all. Rather, the hearing consisted entirely of argument by counsel about the viability of the City's motion for summary judgment and regarding Stephens's counterclaims for damages against the City. Although we recognize an exception to the general rule on finality applies when both parties file motions for summary judgment and the court grants one and overrules the other, Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958), in this case Stephens filed no motion for summary judgment. Thus, this exception does not apply.
When the record in this case was originally presented for filing, we contacted the parties and warned them of the potential defect in appellate jurisdiction, but because of the lack of clarity in the record before us, we chose not to address that issue until after receiving briefing from the parties.
Although the City filed a pleading raising sovereign immunity in avoidance of that claim, there is no ruling on that matter, it was not mentioned in the City's motion for summary judgment, and Stephens nonsuited the claims against the City.
Compare Tex. Health Care Information Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 851 (Tex.App.-Austin 2002, pet. denied) (reviewing denial of motion for summary judgment seeking issuance of a permanent injunction, based upon the cross-motion filed by the opposing party).
There are no indicia of finality within the order refusing the motion for summary judgment and there are no indications that this could possibly have constituted a trial on the merits.
There is a suggestion that because the relief sought in the summary judgment was the issuance of a permanent injunction, the denial of that relief is appealable. A final judgment granting or denying a permanent injunction is an appealable order and would be reviewed by this Court under an abuse of discretion standard. See Operation Rescue-Nat'l v. Planned Parenthood of Houston Se. Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998); In re Epperson, 213 S.W.3d 541, 542-43 (Tex.App.-Texarkana 2007, no pet.).
However, the order denying the motion for summary judgment does not specifically deny the issuance of an injunction and, because it does not finally dispose of the issues involved, it is not a final judgment. What the court denied was a motion claiming that the party was entitled to summary relief as a matter of law. With the exception of the limited circumstances mentioned above, the denial of such relief pursuant to a motion for summary judgment does not create a final, appealable judgment. It leaves the matter before the court, to be determined by trial on the merits.
Thus, unless the order is in some fashion appealable despite not being final, we have no jurisdiction over the appeal. Our jurisdiction over interlocutory appeals is limited to those matters allowed by statute. See Tex. Civ. Prac. Rem. Code Ann. § 51.014 (Vernon Supp. 2007). Had this been an appeal from the denial of a plea to the jurisdiction by the governmental unit, it would be appealable. Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(8). Had this been a denial of a request for a temporary injunction, it would be appealable. Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(4). This is neither.
The motion for summary judgment acknowledges that the City had previously been granted a temporary restraining order following a hearing and states that the City had filed an amended motion thereafter seeking another temporary restraining order and a temporary injunction. That petition also sought a permanent injunction against Stephens.
After mentioning that petition, however, the City's motion for summary judgment thereafter states in the following language that through this motion for summary judgment, it is seeking a permanent injunction.
Movant prays that:
Judgment is rendered against defendant, Todd Stephens d/b/a Stephens and Sons for a permanent injunction.
The Court set this matter for hearing, with notice to Non-Movant, and that upon completion of said hearing the Court grants Movant's Motion for Summary Judgment, and that Movant has the following:
1. Judgment against Defendant Todd Stephens DBA Stephens and Sons, fora [sic] permanent injunction, or alternatively, should the Court find some facts to be controverted, Movant be granted a partial summary judgment specifying those facts that appear to be without substantial controversy;. . . .
At no point in its motion does the City ask the trial court to consider, address, or render a summary judgment involving a temporary injunction. The order denying the motion for summary judgment is not such a ruling.
We do not mean to suggest that a denial of a summary judgment which has the effect of denying a request for issuance of a temporary injunction — but based only on summary judgment proof — is appealable. That question is not before us.
Accordingly, we must conclude that this ruling is not appealable, and the City has thus not invoked the jurisdiction of this Court. We dismiss the appeal for want of jurisdiction.