Opinion
No. 05-09-01116-CV
Opinion Filed March 17, 2011.
On Appeal from County Court at Law of Rockwall County, Rockwall County, Texas, Trial Court Cause No. 1-07-996.
Before Justices FRANCIS, LANG, and MURPHY.
MEMORANDUM OPINION
Primary Media, Ltd., d/b/a Primary Media Outdoor Advertising, and Primary Media Group, Inc. (collectively, Primary Media) appeal an adverse summary judgment requiring the removal of a billboard they erected in 2007 in the City of Rockwall's extraterritorial jurisdiction (ETJ). In four issues, Primary Media contests Rockwall ordinance 00-10 as an invalid attempt to amend a repealed ordinance, the competence of Rockwall's summary-judgment evidence of scrivener's error in drafting the ordinance, the failure of Rockwall to move for summary judgment on ordinance 84-61, and the proper extension of ordinances 00-10 and 84-61 to Rockwall's ETJ. We conclude Rockwall failed to prove scrivener's error as a matter of law and never moved for summary judgment as to ordinance 84-61. We therefore reverse that part of the trial court's judgment granting Rockwall's summary-judgment motion and remand for further proceedings. We affirm the trial court's judgment to the extent it denied Primary Media's amended motion for summary judgment.
GJ Partners is listed as an appellant in the brief, but it never filed a notice of appeal and therefore is not before the Court.
BACKGROUND
Primary Media installs commercial billboards in Texas. After Primary Media installed a billboard in Rockwall's ETJ in June of 2007, Rockwall notified it the sign was in violation of ordinance 00-10. When Primary Media did not remove the sign, Rockwall sued for an injunction to prohibit leasing the sign and to require removal. Primary Media answered and counterclaimed, seeking a declaration the ordinance is void because it purports to amend ordinance 83-50, a repealed statute; that ordinance 00-10 was not properly extended to the ETJ; and that ordinance 84-61 is the governing ordinance.
Ordinance 00-10 is a typed document bearing the following caption:
CITY OF ROCKWALL, TEXAS ORDINANCE NO. 00-10
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROCKWALL, TEXAS, AMENDING THE CITY OF ROCKWALL SIGN ORDINANCE, ORDINANCE NO. 83-50, AS AMENDED TO PROHIBIT ADVERTISING SIGNS; PROVIDING FOR A PENALTY OF A SUM NOT TO EXCEED THE AMOUNT OF FIVE HUNDRED DOLLARS ($500.00); PROVIDING A SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE DATE.
The underlined spaces for the number of the ordinance and the number of the ordinance being amended appear to have been left blank and the numbers are handwritten. The remainder of the document similarly contains blanks only for the number of the ordinance being amended and the date for city council approval. The number "83-50" is handwritten in all blanks referencing the amended ordinance.
The parties filed cross motions for summary judgment regarding ordinance 00-10. After Rockwall responded to Primary Media's motion, claiming the reference to repealed ordinance 83-50 was a scrivener's error and Primary Media was still in violation of ordinance 84-61, Primary Media filed an amended pleading and amended summary-judgment motion. Primary Media dropped its request for a declaration ordinance 84-61 is the governing ordinance and asserted that neither ordinance 00-10 nor 84-61 was properly extended to and does not govern the ETJ.
The trial court granted Rockwall's motion, denied Primary Media's amended motion, and signed a final judgment prohibiting Primary Media from leasing or using the billboard and requiring removal within ninety days. The trial court did not state the basis for its ruling in the judgment.
STANDARD OF REVIEW
Under our settled standard of review, the summary-judgment movant has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). In deciding whether a disputed material fact issue exists, evidence favorable to the non-movant will be taken as true. Id. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied).
When, as here, both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law, and neither party can prevail because of the other's failure to discharge its burden. Guynes v. Galveston Cnty., 861 S.W.2d 861, 862 (Tex. 1993). When both parties move for summary judgment, we consider all the evidence accompanying both motions in determining whether to grant either party's motion. Howard v. INA Cty. Mut. Ins. Co., 933 S.W.2d 212, 217 (Tex. App.-Dallas 1996, writ denied).
DISCUSSION
Whether Reference to Repealed Ordinance 83-50 Renders Ordinance 00-10 Void
Both parties moved for summary judgment as to ordinance 00-10. Primary Media argues in its first issue that ordinance 00-10 is void because it purports to amend a repealed ordinance. Primary Media relies solely on James v. City of Round Rock, 630 S.W.2d 466 (Tex. App.-Austin 1982, no writ) (per curiam) for this proposition.
In James, landowners challenged the constitutionality of the City of Round Rock's zoning ordinances 647 and 648, which were amendments to a prior comprehensive zoning ordinance. The court concluded that because ordinances 647 and 648 were amendments to an old law that subsequently had been repealed expressly by a new comprehensive zoning ordinance, the amendments also were repealed. Id. at 468. Because the landowners were challenging ordinances that had been repealed, their appeal concerning the validity of those ordinances was rendered moot. Id. at 468-69.
Here, Primary Media is challenging ordinance 00-10, which is the most current ordinance relating to advertising in the City of Rockwall and its ETJ. The holding in James is inapplicable, and Primary Media has provided no legal authority supporting its contention ordinance 00-10 is void on its face solely as a result of the reference to a repealed statute. Accordingly, we overrule Primary Media's first issue.
Whether Rockwall Proved Scrivener's Error
As an alternative to declaring ordinance 00-10 void, Primary Media contends in its second issue that Rockwall's summary-judgment evidence was incompetent and a fact issue exists as to Rockwall's contention the handwritten reference to "83-50," the repealed ordinance, was a scrivener's error. In Rockwall's summary-judgment motion, it claimed Primary Media's sign was in Rockwall's ETJ and was in violation of the "applicable sign ordinance." Under the heading "Sign Regulations," Rockwall alleged it had enacted ordinance 00-10 on April 3, 2000, at which time no sign existed at the location where Primary Media's disputed sign subsequently was erected. Relying on the "clear and unambiguous" language of ordinance 00-10, which Rockwall contended was available at city offices and online, Rockwall claimed Primary Media's sign was illegal. Rockwall further asserted Primary Media had failed to comply with its prior notice in which Rockwall claimed Primary Media's "advertising sign" was in violation of ordinance 00-10. Primary Media responded that ordinance 00-10 is void, and Rockwall replied, submitting summary-judgment evidence suggesting "scrivener's error."
The question posed by this record is whether it was Rockwall's intent to amend the then-current ordinance 84-61 related to advertising (with someone mistakenly identifying repealed ordinance 83-50 as the ordinance being amended), or was it Rockwall's erroneous intent to amend repealed ordinance 83-50.
In support of its argument the 83-50 handwritten notation was a scrivener's error, Rockwall relied in part on an affidavit of Jeffrey Widmer, who served as Rockwall's director of building inspections, health, code enforcement, and animal services. Primary Media argues Widmer's testimony regarding the circumstances under which ordinance 00-10 was enacted is legally insufficient because it is speculative, conclusory, and from an interested witness.
We agree Widmer's testimony is legally insufficient as to what city staff understood, what "should have been written in the blank in Ord. 00-10," what "appears" to be a scrivener's error, and what "was relied upon by the City Council in passing Ord. 00-10." Similarly, Widmer's assessment that the "author of the handwritten insert was confused over which ordinance was the existing sign ordinance" and his conclusions as to what was intended constitute legally incompetent evidence. Although Widmer recited that he had "personal knowledge" of the facts stated in his affidavit, that recitation does not convert unsupported conclusions into admissible evidence. See Stone v. Midland Multifamily Equity REIT, No. 05-09-00856-CV, 2011 WL 541132, at *4-5 (Tex. App.-Dallas Feb. 17, 2011, no pet. h.). Widmer discloses no facts suggesting he held any position with Rockwall during the relevant time period that would provide the basis for any personal knowledge of the intent of the council in 2007. Id. Instead, he repeatedly states it "appears" the council, or the author, or the staff member intended to amend the then-current advertising ordinance. Widmer's failure to demonstrate a basis for personal knowledge sufficient for him to testify as to his conclusions renders his affidavit incompetent summary-judgment evidence as to Rockwall's intent. Id.
The remaining evidence relating to whether Rockwall intended to amend ordinance 84-61 or ordinance 83-50 includes the text of ordinances 00-10 and 84-61, as well as the April 3, 2000 city council minutes showing the agenda item of "approval of an Ordinance amending the City of Rockwall Sign Ordinance No. 83-50" and the newspaper notice referencing ordinance 00-10 as amending ordinance 83-50. While the council minutes and newspaper notice reference ordinance 83-50, suggesting by inference Rockwall intended to amend ordinance 83-50, a comparison of the language of ordinances 00-10 and 84-61 suggests a different result. Comparing ordinance 00-10 with 84-61 shows a direct overlay of the language of the sections being amended to the same sections of ordinance 84-61. A copy of ordinance 83-50 is not before the Court for such a comparison. While the language of the ordinances provides circumstantial evidence ordinance 00-10 was intended to amend ordinance 84-61, the parties have not provided a sufficient record from which the Court can interpret the meaning of ordinance 00-10 as a matter of law. As such, the record is insufficient to support summary judgment in favor of Rockwall. We sustain Primary Media's second issue.
Courts use the same rules when construing municipal ordinances as they use when construing statutes. Bd. of Adjustment v. Wende, 92 S.W.3d 424, 430 (Tex. 2002). Statutory construction is a question of law. Even if a statute is ambiguous, the court construes the statute as a matter of law. Arrendondo v. City of Dall., 79 S.W.3d 657, 667 (Tex. App.-Dallas 2002, pet. denied). Here, the parties addressed the question of scrivener's error as a fact question as part of the summary-judgment record. The parties have not addressed whether this was the proper procedure to resolve questions related to scrivener's error. We note only that we have an insufficient record to apply traditional rules of statutory construction to the ordinances in question.
Whether Rockwall Moved for Summary Judgment as to Ordinance 84-61
In its third issue, Primary Media contends the trial court's judgment in favor of Rockwall cannot be supported by an alleged violation of ordinance 84-61 because ordinance 84-61 is not one of the grounds on which Rockwall moved for summary judgment. We agree.
Rockwall moved for summary judgment based on ordinance 00-10. While Rockwall's summary judgment evidence included a copy of ordinance 84-61, Rockwall did not claim a violation of that ordinance in its motion. Similarly, Rockwall's notice to Primary Media stated a failure to comply with ordinance 00-10. Not until its response to Primary Media's motion for summary judgment seeking a declaration ordinance 00-10 was void did Rockwall claim Primary Media was also in violation of ordinance 84-61. Although Rockwall thereafter amended its pleading to allege a violation of ordinance 00-10 or ordinance 84-61, it never amended its summary judgment motion. Because both Rockwall and Primary Media moved for summary judgment, each bore the burden of establishing it was entitled to judgment as a matter of law. Guynes, 861 S.W.2d at 862.
A motion for summary judgment must stand or fall on the grounds expressly presented in the motion, and issues not expressly presented in the motion cannot be considered as grounds to affirm or reverse the trial court's judgment. See Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Reliance Ins. Co. v. Hibdon, No. 14-09-00092-CV, 2011 WL 174944, at *12 (Tex. App.-Houston [14th Dist.] Jan. 20, 2011, pet. filed) (sub. op. on reh'g). Neither a response to a summary-judgment motion nor a reply to a response is considered a motion, and a movant may not use either to raise new and independent summary-judgment grounds. Reliance, 2011 WL 174944, at *12. This is true regardless of whether cross-motions for summary judgment are filed. See id.
Here, Rockwall did not seek judgment in its motion as to ordinance 84-61, and we do not construe its response as a supplemental motion. Summary-judgment procedure is not discretionary, and we cannot disregard the requirements for expediency or in the interest of justice. We sustain Primary Media's third issue.
Whether Ordinances 00-10 and 84-61 Were Properly Extended to Rockwall's ETJ
Turning to Primary Media's amended motion for summary judgment, Primary Media claims in its final issue that the trial court erred in denying it summary-judgment relief because neither ordinance 00-10 nor 84-61 was properly extended to Rockwall's ETJ. Specifically, Primary Media argues that Rockwall sought to extend only portions of its sign ordinances to Rockwall's ETJ and section 216.902 of the Texas Local Government Code does not authorize a municipality to extend only selected portions of an ordinance.
The parties do not dispute that Rockwall, as a home-rule municipality, is authorized pursuant to section 216.902 to extend its sign ordinances to its ETJ. See Tex. Loc. Gov't Code § 216.902 (West 2008). The question raised by Primary Media is whether Rockwall must extend all provisions of an entire ordinance. Our primary objective in construing statutes is to determine and give effect to legislative intent as expressed in the language of the statute. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008); Burnett-Dunham v. Spurgin, 245 S.W.3d 14, 16 (Tex. App.-Dallas 2007, pet. denied). We use the definitions prescribed in the statute and consider any technical or particular meaning the words may have acquired. Hughes, 246 S.W.3d at 625 (citing Tex. Gov't Code Ann. § 311.011(b) (West 2005)). Otherwise we construe the words of the statute according to their plain and common meaning. Tex. Gov't Code Ann. § 311.011(a).
The plain wording of section 216.902 provides that a municipality "may extend the provisions of its outdoor sign regulatory ordinance and enforce the ordinance within its area of extraterritorial jurisdiction. . . ." Tex. Loc. Gov't Code Ann. § 216.902(a). The statute is permissive. Additionally, nothing in the language of the statute restricts or expands which "provisions" may be extended, and Primary Media points to no authority that would require extension of all provisions of an ordinance. Similarly, Rockwall is not precluded from enacting more than one ordinance relating to regulation of outdoor signs, and section 216.902 contains no language suggesting a municipality may extend the provisions of its ordinances only if it extends all ordinances related to outdoor sign regulation.
The only authority cited by Primary Media to support its "all-or-nothing" interpretation is Brown Outdoor Advertising, LLC v. Town of Prosper, No. 05-04-00228-CV, 2005 WL 1140343, at *2-3 (Tex. App.-Dallas May 16, 2005, pet. denied) (mem. op.). The issue in Brown was whether the Town of Prosper's ordinance 02-25 prohibited the erection of commercial billboards in the town's ETJ. Id. at *1. The issue was resolved solely on principles of statutory construction as to whether the ordinance was intended to include the town's ETJ. Id. at *1-3. The conclusion in Brown does not support the result suggested by Primary Media here.
Based on the plain language of section 216.902 of the Texas Local Government Code, the trial court did not err in denying Primary Media's amended motion for summary judgment in which it sought a declaration that neither ordinance 00-10 nor 84-61 was properly extended to Rockwall's ETJ. We overrule Primary Media's last issue.
CONCLUSION
Rockwall failed to prove scrivener's error as a matter of law as to ordinance 00-10 and never raised enforcement of ordinance 84-61 as part of its summary-judgment motion. Accordingly, the trial court's order granting Rockwall's motion for summary judgment is reversed and the case is remanded for further proceedings. The trial court's denial of Primary Media's amended motion for summary judgment is affirmed.