1 John T. Boyd , Chief Justice (Ret.), Seve nth Court of App eals, sitting by assignme nt. NO. 07- 04-00 24-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO PANEL E MARCH 22, 2005

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______ RAND McPHERSON AND GEORGETTE McPHERS ON, APPE LLANTS V. CITY OF LAKE RANSOM CANYON, APPELLEE

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_________ FROM THE 237 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 9 9-5 06, 390; HONORAB LE SA M MEDI NA, JUDGE

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_______ Before QUI NN and REAVIS, J J. and BOYD, S.J. 1
MEMORANDU M OPI NION
Rand McPherson and Georgette McPherson cha llen ge the t rial court’ s judgment decla ring th em to be i n viol ation of Sect ion 2 o f Ordi nance 46 of the Ci ty of

Lake Ransom Canyon, granti ng inj uncti ve rel ief s ought by the Ci ty, and sever ing their clai ms for mal icio us

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prosecut ion and abuse of proc ess to bedetermi ned at a subsequent date. By t heir fi rst five issues, the McPhersons contend the trial courterred in granti ng summary judgment because (1) the j udgment f

aile d to di spose of all clai ms of theparti es i n the record, (2) cri minal proceedi ngs were pendi ng upo n all eged vi olati ons of t he subject ordin ances, ( 3) secti ons 54.012 and 54. 018 of t he Texas Loc al Gover nment Code ar e the e xclu sive ci vil remediesfor
en forceme ntof an o rdinan ce regul ating struct ures, (4) genui ne and material issues of fact regardi ng the City ’s cl aim of v iola tion of munic ipal ordin ances exi sted, and (5) or dering removal of thecaboose i s outsi de the scop e of permissi ble decl arator y rel ief. By th eir si xth i ssue, t he McPhersons contend the tri al cour t erred in o rderi ng a s eve ra nce of th e rema in in g cl ai ms. We affir m.
In 1996, the McPherso ns purchase d a tra ct of land i n City of Lake Ransom Canyon, Texas and bui lt a resid ence ther e. At all times material here, City Ordinance 51, ent itl ed Substandard Building and Ci ty Ordinance 46, pertaining to Amendment of Building Code were in effect. Accor ding to the af fidav it of

the Ci ty Admi nistr

ator, McPherson contacted t he Architecture Cont rol Com mit tee and stated he wanted to install a 1914 Burlington Nort hern Caboose on his propert y to b e used fo rstorag e and a bun khouse/pl ayhouse f or grandchi ldren. After consi derat ion, the Co mmitt ee den ied the re ques t. The M cPhe rsons then too k their request to th e City

Council by per

sonal ap p earance on May 13, 1997. The ir request was presente d orally along with a written summary. However, because a mot ion was no tpresented, no action was taken on the requ est for a permit.

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The M cPhe rsons made a seco nd app earan ce be fore the City Cou ncil on July 1, 1997, and renewed t heir r

equ est fo r a pe rmit to move the caboose onto thei r proper ty. Foll owing discussi on, upon a moti on to de ny, t he Council voted to deny the re quest. Then, wi thout obtai ning a buil ding permit or other authority, in February 1999, the M cPherso ns had con crete pads installe d on the ir pr operty . Alt hough a buil ding of fici al fo r the Ci ty obse rved t he installa tion of the concrete pa ds, he did not object to the wor k. Then, withou t obta inin g a vari ance or buil ding permit , the caboose was pl aced on a t rail er bed and moved to the McP herso n’s property. After

the wheel s were reat tached, a crane wasused to pl ace the cabo ose on th e concrete pads. Commencing May 18, 1999, t he City served t he McPhersons wi th 15 ci tati ons chargin g viol ation s of

Ordinance46, Sect ion 2, and Ordi nance 51; however, the j udgment does not indicate the status of the citations on the docket of the m unicipal court.
The cita tionsprompted the McPhersons to fil e the underlyi ng action seeking declaratory judgment

and damages. Among othe r thi ngs, t hey al leg ed tha t a bui ldin g permit was not requir ed for t he caboose p roject because i t “re presente d a small and uni mportant work, an d the City waived any requ irement for a building perm it.” They s ou ght a de claratory j udgment declari ng they had not viol ated any ordin ances and t he buil ding official’s fail ure to “red tag” the project constituted a “no obje ction” or waiver of Ord inance 46. Al so, th e McPhersons
co nten ded that Ordinance s 46 and 51 w ere uncons titutionally vague and overly broad. In addit ion, they sought at torney ’s fe es pursuant to sect ion 36. 009 of t he Texas Ci vil Practi ce and Remedies Code and filed a separate clai m for damagesfor mal icio us prosecut ion. In addi tion to its answer and s pecial exceptions , the City likewise sought d eclaratory j udgment seek ing,

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among other reli ef, a determi natio n that the McPher

sons were i n viol ation of Sect ion 2 o f Ordinance 46, mandatory i njuncti ve rel ief, and attorney’ s fees. Byits thir

d amended moti on for summary ju dgment, t he City sought adeclar

ation that (1) the McPhersons were in violat ion of Section 2 of Ordinance 46 for (a) constru cting a concrete slab ad jacen t to their resid ence wit hout obtaini ng a permi t fr om the City

or a variance for non-req uirement

of a pe rmit, and (b)moving an d placi ng the caboose on the concrete slab without obtai ning a permit

or var iance, (2) t here was no basis for t he McPhersons’ clai m of malici ous prosecut ion, or (3)there was no basi s for t heir c laims of abuse o f process asa matter of law. Foll owing a he aring on the Ci ty’ s motion , the tri al cour t concl uded:

• the McPhersons ar e in v iola tion of Sect ion 2 o f Ordi nan ce 46 in (a) constructing a concrete slab on thei r proper ty wi thout obtai ning a perm it from the City or a varia nce f or non -requ ireme nt for pe rmit an d (b) in moving and pl acing a rail road caboo se on the concrete s lab on th eir property without obtaining a variance for non-re quirement there of;

• the McPhersons’ clai ms for mal icio us prosecut ion and abuse of proc ess are separate and disti nct and a re prope rly severabl e;

• the McPhersons’ clai ms that Ord inance 5 1 is unconsti tuti onal ar e not relev antor material to the dete rminat ion of th e City ’s moti on based on Sectio n 2 of Ord inance 4 6;

• injunctivereli ef sought bythe City to requi re the removal of thecaboose and pad was pro per under secti on 37.011 of theTex. Ci v. Prac

. & Rem. Code; and
rendered judgment ac cordingly. Before commencing our analysis of

the McPher

sons’ i ssues, we set for th t he app ropr iate sta ndard s of revi ew.

### 5 Standard of Revi ew–Summary Judgment
In reviewing sum mary judgm ent, this Court mus t apply the standards e sta blis hed i n Nixon v. Mr. Property

Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985):
1. Th e movantfor sum mary judgm ent has the bur den of s how ing that th ere is no genuineissue o f mat eri al fa ct and t hat i t is entit led to judgment as a matter of l aw.
2. In deci ding whet her the re is a disputed materi al fact issue p recludi ng summary judgment , evi dence favorableto th e non-movant will be taken as tru e. 3. Every reasonabl e inf

erence must

be ind ulged i n favor

of th e non-movant

and any doubts resolved i n its favor.
For a party to p revai l on a motion f or summary j udgment, he m ustconclusi vely establ ish t he absence of any genuine que stion of material fact and that he is en titled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A mov ant must ei the r pr

ove al l e ssen ti al el emen ts of h is cla im, MMP, Ltd. v. Jones, 7 10 S.W.2d 5 9 (Tex. 1986), or negate atleast one essent ial element of the
non-m ovant 's cause of action. Randall's Food Markets, I nc. v. Johnson, 891 S.W.2d 640, 64 4 (Tex. 1995). Once the mov ant has e stabl ished a right to summary judgment , the non-movant h as th e burden to respond to the motion for summary judgment and present to t he trial court anyissues that wo uld pre clude sum mary judgm ent. City ofHous ton v. C lear Cr eek B asin Authority, 589 S.W.2d 671, 67 8 (Tex. 1979); Ba rbout i v. Hearst Cor p., 92 7 S.W.2d 37 , 64 (Tex.App

. --Ho uston [1st Dist.] 1996, writ denied). Issues whi ch the no n-movant contends preclud e the grantin g of a su mmary judgment mustbe expre ssly p resented to th e tri al cour t by written answer or other written response to the motion and not by mere reference to summary

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judgment

evidence. McConnell v. Southside School Dist. , 858 S.W.2d 337, 341 (Tex. 1993). Issues not ex pressly

presented to t he tri al court in w riting sha ll not be consider ed on appea l as grounds for reve rsal. Tex. R. Civ. P. 166a(c ). Byt hei r first

issue, the McPhersons contend the tr ial court erred in granti ng summary judgment

when the judgment fail ed to di spose of all clai ms of theparties. By the ir si xth i ssue, they conte nd the tr ial court e rred in orderi ng a sever ance of t he clai ms of mali cious prosecut ion and abuse of

process. Because we di sagree as to both contentio ns and th ese two i ssues implicate the severa nce of claims, we will consider them sim ultaneously.
Pursuant

to Rul e 41 of the Texas Rul es of Ci vil Procedure , thetri al cour t was aut horized to sev er cla ims. Sev erance of clai ms is prop er if

the (1 ) contr

oversy invol ves more t han one
cause of act ion, (2) seve red cl aim is one that would be the p r oper s ubjec t of a laws uit if indep ende ntly asserte d, and ( 3) severed clai m is not so interwoven wi th theremaini ng acti on that they invol ve the same factsand issues. Guaranty Federal v. Hors eshoe Operat ing, 793 S.W.2 d 652, 658 (Tex. 19 90). Also, we review the action of the trial court fo r abuse o f discret ion. Id . at 6 58. Moreo ver, atri al cour t may grant a severance sua spon te . Rice v. Travelers Exp res s Co., 407 S.W.2d 534, 536 (Tex.Civ. App.--Houston 1966, writ r ef’d n.r. e.). Consideri ng the claim s for m alicious prose cution and ab use o f proce ss we re in depen dent cla ims and the y were sever ed alon g with o ther iss ues, w e are un able to h old the tria l cour t abused its discret ion i n severi ng those matters. Due to t he se verance o f the clai ms, the judgment

chall enged here is final and subj ect toappeal. Lehmann v. Har-Con Corp ., 39 S.W.3d 191,195 ( Tex. 2001 ). I ssues one an d six a re over ruled.

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Bythei r second i ssue, t he McPhersons conte nd the tr ial court e rred in granting summary judgment

and denying their plea to the jurisdiction on the City’s declaratory judgm ent a ct ion when there were pen ding criminal proce edings on the su bject ordinance s. We dis agree. Sectio n 54.012 of th e Texas Local Gov ernment Codeprovi des that a munici pali ty may bring a civil acti on for the enf orcement o f an or

dinance. As we under stand t hei r conte ntion , the McPhers on s assert that b ecause th e secti on does not author ize si multaneo us crimi nal prosecut ions with c ivi l enf orcement p roceedi ngs, t he City could n ot maintain i ts counterclaim for declar atory judgment

whilethe criminal prosecu tions remained pending. In connection w ith its argument, they

cite City of Longview v. Head, 33 S.W.3d 47 (Tex.App.--Tyl er 2000, no pet.); however, that case is not cont roll ing beca use the und erly ing civi l proc eeding wascommenced bythe McPhe rsons after the citations for ord inance violati ons were issued a nd served

. Moreover, the City filed its answer and counterc laim f or decl arator

y judgment

as permi tted by the Texas Rules of Civil Procedure. Any error i n this re gard was t he reforeinvi ted by the McPhersons and maynot be consider ed on appea l as gr

ounds for

reversal. See Bell v. S howa Denko K.K., 899 S.W.2d 749, 76 0 (Tex. App.--A maril lo 1995, writ den ied). Iss ue two is overruled. Bytheir t hird issue, the McPher sons conte nd the t rial court erred in granti ng summary judgment

when the exclusi ve civ il r emedy for

enforc e me nt of an ordi nance woul d have bee n pursuant to sections 54.012 and 54.018 of the Lo cal Governm ent Code an d that a declaratory judgment actio n and mandatory i njuncti on was improper. We disagre e.

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By their multiple response s to the City’ s motion for summaryjudgment , the McPhersons did not expressly pr

esent to the trial court

thei r conte ntion that a mandator y inj uncti on was not avail able. Accordi ng ly, this issu e may not be c onsid ered o n appe al as gro unds for reve rsal. Tex. R. Civ. P. 166a (c). See also McC onne ll , 858 S. W.2d at 34 1. Is sue three is overrul ed. Bythei r four

th is sue, t he McPhersons contend the tri al court erred i n granting summary judgment

because mat erial issues of fact reg ardi ng thei r vio lati on of t he munici pal or dinance existed. By two sub-parts, the y all ege that issues of

fact existed to pre vent summary judgment (a) on the Cit

y’s cl aim that

the pl acement of

the cabo ose vio lated Secti on 2 of Ordinance 46, and (b) re gardin g unconst itut ional ly v ague and bro ad langu age descri bing pr operti es subject to waiver of the perm it requirement. We d isagree. Befo re we commence o ur revi ew of the two sub-parts, we fir

st note that

because the re cord does notshow that the McPher

sons’ ob jecti ons to the summ ary judgmen t evidence prese nted by the City were presented to the t rial court and
a ruling obtained thereon , they may not be co nsidered on ap peal. See Giese v. NCNB Tex. ForneyBanking Center, 881 S.W.2d 776, 782 (Tex.A pp.--Dallas 1994 , no writ); McC onne ll , 858 S.W.2d at 343

. Section 2 of Ord inance 46 prov ides:
ThatSecti on 301(a)of the Uni form Bui ldin g Code, 1976 Edi tion, as amended by the City of Lubb ock, Texas , which Ordinancewas adopte d by t he Vil lage of Lake Ransom Canyon as its Bu ildi ng Code in Ordi nanc e No. 17 a nd Secti on 2:1 o f Ordinance No. 24 be and they are amended to read as fol lows:
Permits required. No pe rson, firm or corpor ation shall erect, construct, enlar

ge, al ter, repai r, move, improve , remove, convert,

### 9 or demo lish any b uild ing or str ucture in th e Vil lage, or cause the same to be d one, wi thout fir st obtaini ng a separate bui ldin g perm it for each building or structure from t he buil ding of fici al, e xcept t hat upon appli catio n and auth orization of the building official, a buil ding permi t may b e waived f

or smal l and unimport

ant work. No per mit wil l be require d for n ormal re pair a nd maintenance of anybuil ding nor

shall a permit

be requi red for

erecti on of a fence or constru ction of

a pati o so lon g as any such str ucture would not consti tute aviol ation of any other provi sion of

the bui ldin g code. (Emphasis added). Sub-part(a). Waiver by Bui ldin g Offi cial . Per Sectio n 2, upo n appli catio n to th e buil ding official, the offi ci al may wai ve the requir ement of a permit

for smal l and u nimportant work. Accordin g to th e summary j udgment evi dence, i n order to move t he caboose to the McPher son property, it’ s size r

equire d that

it b e placed on a tra iler by a cr ane, an oversi ze permit obtai ned from the Texa s Department of Tran sportat ion for move ment on t he highway and pl acement on the McPhersons’ propert y by cr ane. Unl ike t he constr uctio n of a gazebo, a barb eque pit, or a shed for l awn and gard en hand tools wi thout p lumbing or electric al w iri ng, whi ch some may consider to be small and uni mportant work, t he summary j udgment evi dence consi dered in t he contextof a resident ial subdivi sion doe s not raise a fa ct quest ion t hat th e constr uctio n of t he concrete pad and t he place ment of t he caboose o r the p roperty was bot h small and uni mportant work. Accordi ngly, the f act th at thebuil ding of fici al di d not red tag t he proj ect i s not con trol ling because t he except ion f or “smal l and u nimportant work”would not have been avail able. Sub-part(b). Vagueness ch alle nge. Al though ou r deci sion i n sub-par t (a)that no fact questi on is pres ented t hatthe i nstal lati on of t he caboose consti tuted “small and uni mportant

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work,” we brie fly

address t he issue . The McPhersons di d not ap ply to the bu ildi ng officia l for
a buil ding permit on any ground. I nstead, they appeared b efore t he Archi tectur e Control Committee and twi ce beforethe Ci ty Counci l and t heir r equests wer

e denied . The dec isio n of the City Council is not

subject to col later

al attack as t he McPhersons a ttempt here. See Carr
v. Bell Sav. & Loan As s’n., 7 86 S. W. 2d 761, 764 (Tex.App.--Texarkana 1990, wri t denied). Issue f our isoverru led. Bythei r fi fth i ssue, t he McPhersons co ntend t he tria l court erred i n granting summary judgment

orderi ng removal of th e caboose whi ch is ou tsidethe scope of permissible decl aratory judgment. We disagr

ee.
Pleadi ngs fr ame the issues for determinat ion. Murray v . O & A Express, I nc., 6 30 S.W.2d 633 (Tex. 1982). By its second amended cross-petiti on for d eclara tory judgment, among other thing s, theCity expressl y sought

mandatory

inju nctiv e r elief to requi re the McP hersons to remov e the cab oose. Not withstanding t his pl eading, the McPher sons did not chall enge the appropriateness of injuncti ve re lief by special excepti on. Accor dingl y, any content ion that injun ctiv e reli ef would not

lie was waived. See Tex. R . Civ. P. 90 ; J.K. & S usie L. Wadley Res earch Inst. v. Bees on, 835 S.W .2d 689, 693 (Te x.App.- -Da llas 1992, wri t denied). Further, by i ts thi rd amended m ot ion for summary judgment, the Ci ty also sought i njunctive relief. However, by th eir mul tipl e responsesto th e C ity’ s mo tion for summary judgment , the McPhersons did not ex press lypresent to th e tri al cour

t thei r conte ntion that

an order

requi ring removal by injunction was no t appropriate. Acco rdingly, th is issue may not be consider

ed on

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appeal as grounds for reversal. Tex. R. Civ. P. 166(a )(c); see also McC onne ll , 858 S. W.2d at 341. I ssue fi ve is o verrul ed.
Accordin gly, the j udgment of the t rial court is af

fir med.
Don H. Re avis Just ice