Neil Chur, Neil Chur, Jr., et al. v. Estella Haynes Myles, et al.

  IN THE

TENTH COURT OF APPEALS

No. 10-00-120-CV

     NEIL CHUR, NEIL CHUR, JR.,

     MARNI CHUR AND

     THE PARK ASSOCIATES, INC.,

                                                                              Appellants

     v.

     ESTELLA HAYNES MYLES,

     L.C. HAYNES AND LEANNA ALEXANDER,

     INDIVIDUALLY AND AS

     REPRESENTATIVES OF THE ESTATE OF

     MALINDA HAYNES, DECEASED,

                                                                              Appellees

From the 82nd District Court

Robertson County, Texas

Trial Court # 99-09-15,824-CV

MEMORANDUM OPINION

      On March 6, 2001, the parties filed an agreed motion to dismiss this appeal. In relevant portion, Rule 42.1 of the Texas Rules of Appellate Procedure provides:

(a) The appellate court may dispose of an appeal as follows:

(1) in accordance with an agreement signed by all parties or their attorneys and filed with the clerk; or

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no party may be prevented from seeking any relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1.

      The motion states that the parties have settled their dispute, executed appropriate releases and submitted dismissal papers to the court below for dismissal of the underlying case. The parties request that the appeal be dismissed with each party bearing its own costs. It is signed by the attorneys for both parties.

      Therefore, this cause is dismissed. Costs are taxed against the party incurring them in accordance with the agreement of the parties.

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed

Opinion delivered and filed March 21, 2001

Do not publish

the city's motion and denied Appellants' motion. In two points of error, Appellants contend that the court erred in doing so.

THE CHARTER AND THE ORDINANCE

      In 1978, the voters of Corsicana adopted three amendments to the city charter concerning recall, initiative, and referendum. Each amendment directed the city commission to adopt "measures as are reasonable and necessary" to carry out the new charter provision. The commission adopted Ordinance No. 1162 to provide the procedural framework necessary to implement all three provisions.

      The portion of Ordinance 1162 that implements the initiative and referendum provisions is unambiguous. Both the initiative and referendum procedures require petitions containing signatures "equal in number to at least 25 percent of the total number of qualified voters registered to vote at the last regular city election." The portion of Ordinance 1162 that implements the recall provision is equally unambiguous. It states that a petition for recall must have signatures "equal in number to at least 25 percent of the number of votes cast at the last regular municipal election of the city" in the case of an official elected city-wide and "equal in number to at least 25 percent of the number of votes cast at the last regular election held in such precinct" in the case of a precinct official.

      The applicable provision of the city charter is somewhat less clear. Each amendment provided for a petition process requiring "twenty-five percent (25%) of the number of registered voters at the last city general election." Thus, each amendment could be read to require that petitions contain signatures equal to or greater than twenty-five percent of the number who actually voted or of the number of voters who were registered in the city (or precinct) on the date of the last general election. If the former interpretation is given, the ordinance provision concerning recall is consistent with the charter; if the latter interpretation prevails, the ordinance is in conflict with the charter.

STANDING

      Appellants complain here, and complained in the trial court, that the city and its officials have no "standing" to assert that its ordinance is invalid. Standing is a party's justiciable interest in the suit and is a jurisdictional matter that may not be waived. Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). The general test for standing "requires that there ``(a) shall be a real controversy between the parties [e.g., a justiciable controversy], which (b) will be actually determined by the judicial declaration [or relief] sought.'" Id. at 446 (quoting Board of Water Eng'rs v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722, 724 (1955)). Here there is a real controversy about the effect of Ordinance 1162, one that can be judicially determined. Thus, we hold that the city and its officials have standing.

STANDARD OF REVIEW

      Appellants complain both of the granting of the city's motion for summary judgment and of the denial of their motion. Usually, the denial of a motion for summary judgment is not appealable. Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670, 674 (1955). However, when two opposing parties each file a motion for summary judgment and an appeal results, the appellate court can "determine all questions presented, and may reverse the trial court judgment and render such judgment as the trial court should have rendered, including rendering judgment for the other movant." Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988); see also Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958); Orix Credit Alliance, Inc. v. Omnibank, N.A., 858 S.W.2d 586, 589 (Tex.App.—Houston [14th Dist.] 1993, writ dism'd w.o.j.) (affirming grant of summary judgment after competing motions filed).

      In reviewing the summary judgment record before us, it is our duty to apply the following rules: The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a matter of law; the reviewing court must accept all evidence favorable to the non-movant as true; every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). We may not consider evidence favorable to the movant's position unless it is uncontroverted. See Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

RULES OF CONSTRUCTION

      City ordinances bear the same relationship to the city's charter as state statutes do to the state's constitution—in the event of conflict, the superior prevails. City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202, 205-06 (Tex. Comm. App. 1927, opinion adopted). The parties agree that the same rules of construction apply. See Mills v. Brown, 159 Tex. 110, 316 S.W.2d 720, 723 (1958); Reed v. City of Waco, 223 S.W.2d 247, 254 (Tex. Civ. App.—Waco 1949, writ ref'd). One of those rules of construction is that laws will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached. Fall, 291 S.W. at 206. Following this theory, Appellants urge that there is no conflict because the charter can be interpreted in a manner that will avoid conflict with the ordinance. Such an approach to interpretation would, in our view, reverse the time-honored and well-established rule that superior laws prevail over inferior laws. See Vosburg v. McCrary, 77 Tex. 568, 14 S.W. 195, 196 (1890); Loos v. City of Houston, 375 S.W.2d 952, 956 (Tex. Civ. App.—Houston 1964, writ ref'd n.r.e.) ("The City, in passing an ordinance, is subject to the provisions of its charter.") Additionally, as we will see, the interpretation that Appellants urge would render another provision of the ordinance in conflict with the charter. Thus, we will interpret the applicable provision of the city charter in light of, but apart from, the existence of the ordinance.

      A city's charter must comply with the state constitution and statutes. Tex. Const. art. XI, § 5. Appellants do not complain that the charter violates either. "The power of a municipal corporation or of a city council cannot exceed that conferred by the charter, and all ordinances must be in subordination thereto." Vosburg, 14 S.W. at 196. Thus, our determination is based on the charter being the organic law of the city, and in interpreting the charter, we look to the intent of the framers. See Wilson v. Galveston County Cent. Appraisal Dist., 713 S.W.2d 98, 101 (Tex. 1986) ("In construing the Texas Constitution, it is our duty ``to ascertain and give effect to the plain intent and language of the framers of a constitutional amendment and of the people who adopted it.'"); Gragg v. Cayuga Indep. Sch. Dist., 539 S.W.2d 861, 865-66 (Tex. 1976).

ANALYSIS

      The city's summary judgment evidence included the affidavits of H. R. Stroube, who was serving as mayor at the time the charter was amended to include the recall provision, and R. B. Gober, who served as a city commissioner and mayor pro tem during the same time period. Both state that the charter provision was intended to require twenty-five percent of the number of voters who were registered at the time of the last city general election and that the words "at the last city general election" were intended to set a date for determining the number of registered voters. The city also presented the affidavit of Nelda Neal, who was city secretary when the charter was amended and when the ordinance was adopted. She states that her notes from the work sessions of the commission included discussions of the proposed charter amendments and that the commission initially discussed a requirement of ten percent of the registered voters to initiate a recall but changed the requirement to twenty-five percent. She states that it was always the intent of the commission that the number of registered voters, rather than the number of actual voters, be the basis for the percentage required for a recall petition. She further states that the language of the ordinance concerning recall petitions is "simply an error by the drafter of the ordinance."

      Appellants presented no summary judgment evidence of a contrary intent. Instead, they point to the adoption of Ordinance 1162 and say that, because Stroube and Gober were on the commission when the ordinance was adopted, the charter should be given the meaning that they assigned to it in the ordinance. The city responds by saying that the error in drafting Ordinance 1162 is apparent because, although the three charter provision are identical, the provision of the ordinance implementing initiative and referendum requires petitions containing signatures "equal in number to at least 25 percent of the total number of qualified voters registered to vote at the last regular city election," while the provision implementing recall departed from the charter's language.

      Rather than supporting Appellants' interpretation of the charter, we believe that the ordinance supports the city's position. Ordinance 1162 uses two methods of determining the required number of signatures on a citizen-originated petition: one based on the number of registered voters as of a given date without respect to who has actually voted and one based on the number of persons who actually voted at an election held earlier. The ordinance uses the former to specify the number of signing voters required for initiative and referendum and the latter to specify the number of signing voters required for a recall election. One or the other of the provisions concerning petitions cannot be squared with the charter because all three of its provisions are identical.

      The city's own interpretation of its charter provision is evidence of what the commission thought soon after the charter was amended. Because the requirement of the ordinance adopted by the commission concerning initiative and referendum more closely follows the language of the charter and because the affidavits of the mayor, commissioner, and city secretary support the notion that the framers intended to use "registered voters" rather than "actual voters" as the benchmark in all three amendments, we conclude that the "registered voters" interpretation is the one that the framers intended when the charter was amended. See Wilson, 713 S.W.2d at 101. Thus, we believe that the charter provision should be interpreted to mean "twenty-five percent (25%) of the number of registered voters at [the date of] the last city general election."

      We hold that the court did not err when it determined that the provision of Ordinance 1162 concerning recall petitions conflicts with the city's charter. We overrule both of Appellants' points of error and affirm the judgment of the trial court.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed February 15, 1995

Do not publish