City of Celina v. City of Pilot Point and Talley Ranch Management, Ltd., a Texas Limited Partnership ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-230-CV
CITY OF CELINA APPELLANT
V.
CITY OF PILOT POINT APPELLEES
AND TALLEY RANCH
MANAGEMENT, LTD., A
TEXAS LIMITED PARTNERSHIP
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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The City of Celina appeals from the trial court’s summary judgment in
favor of the City of Pilot Point and Talley Ranch Management, Ltd., a Texas
Limited Partnership in a dispute over the validity of an annexation by Pilot Point.
In three issues, Celina challenges the trial court’s grant of summary judgment
1
… See Tex. R. App. P. 47.4.
for Pilot Point and Talley Ranch, its denial of summary judgment for Celina, and
its denial of Celina’s motion to strike Talley Ranch’s intervention. Because we
hold that the trial court did not err by granting summary judgment for Pilot Point
and Talley Ranch and that Talley Ranch properly intervened, we affirm.
Facts and Procedural History
On January 10, 2000, Pilot Point passed an ordinance annexing the FM
455 right-of-way from the Pilot Point city limits east to the Denton-Collin
County line (“the FM 455 property”). Talley Ranch owns approximately 3,700
acres along the Denton County line and FM 455, 190 acres of which Celina
claims is within its extraterritorial jurisdiction (“ETJ”). Five years later, in 2005,
Pilot Point and Talley Ranch entered into two development agreements; one of
these agreements covered only the part of Talley Ranch property not claimed
by Celina as being within its ETJ (“the Talley Tract”). Pilot Point also adopted
a resolution to accept approximately 3,545 acres of Talley Ranch’s property
into its ETJ. According to Celina, this property is adjacent to the FM 455
property but is not contiguous with Pilot Point’s borders as they existed prior
to the 2000 annexation.
In 2006, Pilot Point accepted additional land into its ETJ after the owners
of the land petitioned Pilot Point to do so; according to Celina, this property is
2
also adjacent to the FM 455 property but is not adjacent to Pilot Point’s borders
as they existed prior to the 2000 annexation.
Also in 2006, Celina brought suit against Pilot Point seeking a declaration
that the 2000 annexation was void because (1) it extended into Celina’s
previously existing ETJ; (2) it was a prohibited “strip annexation” in that the
annexed land was less than 1,000 feet at its narrowest point; and (3) it
annexed land outside Pilot Point’s ETJ. Celina also argued that any of Pilot
Point’s acts that were predicated on the 2000 annexation, including Pilot
Point’s acceptance into its ETJ of the Talley Ranch property, were void. Celina
further sought a declaration that the development agreements between Talley
Ranch and Pilot Point were void.
Talley Ranch intervened. Pilot Point and Talley Ranch both moved for
summary judgment on the ground that Celina’s suit was barred by section
43.901 of the local government code because it had been filed more than two
years after the 2000 annexation.2 Celina responded that section 43.901 did
not entitle Pilot Point and Talley Ranch to summary judgment because that
section only cured a defect in an annexation if the defect was based on lack of
2
… Act of Apr. 30, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen.
Laws 707, 766 (amended 2001) (current version at Tex. Loc. Gov’t Code Ann.
§ 43.901 (Vernon 2008)).
3
consent. That is, even if Celina’s consent to the annexation was presumed
under section 43.901, that consent could not cure two other substantive
defects of the annexation: that Pilot Point had annexed land outside its ETJ
and that the land was less than 1,000 feet at its narrowest point.
Celina also moved for summary judgment on those grounds—that the
annexation purported to annex an area outside of Pilot Point’s ETJ and was less
than 1,000 feet wide. The trial court granted Pilot Point and Talley Ranch’s
motion and denied Celina’s motion. This appeal followed.
Standard of Review
A plaintiff is entitled to summary judgment on a cause of action if it
conclusively proves all essential elements of the claim. 3 A defendant is entitled
to summary judgment on an affirmative defense if the defendant conclusively
proves all the elements of the affirmative defense.4 When reviewing a summary
judgment, we take as true all evidence favorable to the nonmovant, and we
3
… See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59,
60 (Tex. 1986).
4
… Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see
Tex. R. Civ. P. 166a(b), (c).
4
indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor.5
When both parties move for summary judgment and the trial court grants
one motion and denies the other, the reviewing court should review both
parties’ summary judgment evidence and determine all questions presented.6
The reviewing court should render the judgment that the trial court should have
rendered.7
Analysis
In its first issue, Celina argues that the trial court erred by granting
summary judgment for Pilot Point and Talley Ranch because Pilot Point’s
annexation was void, Celina’s consent cannot be presumed, and, in any event,
section 43.901 does not cure any defect other than lack of consent in an
annexation. Pilot Point and Talley Ranch counter that section 43.901 bars any
challenge by Celina to the annexation of the property.
At the time Pilot Point adopted the ordinance annexing the FM 455
property, section 43.901 provided,
5
… IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 798 (Tex. 2004).
6
… Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
7
… Id.
5
A municipal ordinance defining boundaries of or annexing area to
a municipality is conclusively presumed to have been adopted with
the consent of all appropriate persons if:
(1) two years have expired after the date of the adoption of the
ordinance; and
(2) an action to annul or review the adoption of the ordinance has
not been initiated in that two-year period.8
In 1996, the Supreme Court of Texas issued its decision in City of
Murphy v. City of Parker.9 In that case, the court held that Murphy was time-
barred from challenging an annexation by Parker because it did not challenge
the annexation until after two years had passed.10 In 2001, the legislature
amended section 43.901 to provide that “all appropriate persons” does not
include municipalities, but it did not make the amendment retroactive. 11
8
… Act of Apr. 30, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen.
Laws 707, 766 (amended 2001) (emphasis added). Throughout this opinion,
we use “section 43.901” to refer to version of the statute in effect prior to the
amendment.
9
… City of Murphy v. City of Parker, 932 S.W.2d 479, 482 (Tex. 1996).
10
… Id.
11
… See Act of May 15, 2001, 77th Leg., R.S., ch. 401, § 1, 2001 Tex.
Gen. Laws 733, 733–34 (adopting amendment to section 43.901 and providing
that “[t]he change in law made by this Act to Section 43.901. . . applies only
to a municipal ordinance that . . . is adopted on or after the effective date of
this Act”).
6
In 2003, this court looked at the holding in Murphy and determined that
the supreme court had interpreted section 43.901 “to be a statute of limitations
resulting in a complete bar, as a matter of law, to any challenge after two
years.” 12 There is no dispute in this case that Celina did not bring suit within
two years of Pilot Point’s annexation.
Celina argues that, nevertheless, section 43.901 does not bar its claim.
It first contends that section 43.901, as interpreted by Murphy, only bars
challenges asserting lack of consent but does not bar challenges that allege
other defects. In this case, Celina challenged the annexation on the ground that
the FM 455 property was not at least 1,000 feet wide at its narrowest point.
Under section 43.054 of the local government code, any area to be annexed by
a municipality must be at least 1,000 feet at its narrowest point unless, among
other things, the owners or a majority of the qualified voters of that area initiate
the annexation by written petition.13 Celina further contends that the FM 455
property extended Pilot Point’s ETJ beyond what was allowed by statute and
that Pilot Point did not own the property.14 Under section 42.021, a
12
… City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 631–32
(Tex. App.—Fort Worth 2003, pet. denied).
13
… Tex. Loc. Gov’t Code Ann. § 43.054(a), (b)(2) (Vernon 2008).
14
… See id. §§ 42.021(a) (limiting a municipality’s ETJ to contiguous
property within certain geographical restrictions), 42.022(b) (allowing the
7
municipality may not expand its ETJ beyond certain limits unless the owners of
the area request the expansion.15
In support of its argument, Celina points to language in Murphy: “The
statute conclusively presumes that after two years, all required consent to an
annexation was given; thus all challenges based on lack of actual consent are
barred.” 16 But the absence of consent was the particular issue raised by the
parties in that case—Murphy objected that the action of Parker was void
because it was taken without Murphy’s consent.17 The court also spoke of
section 43.901 generally and stated that with that section, the legislature
“recognized the need for certainty in municipal boundaries.” 18 Thus, “[t]he
[l]egislature has directed that at a certain point in time, defects in an annexation
must yield to the interests of stability.” 19
expansion of a municipality’s ETJ beyond the distance limitations imposed by
section 42.021 to include an area contiguous to the otherwise existing ETJ of
the municipality if the owners of the area request the expansion).
15
… Tex. Loc. Gov’t Code Ann. §§ 42.021(a), 42.022(b).
16
… Murphy, 932 S.W.2d at 482 (emphasis added).
17
… Id. at 480–81.
18
… Id. at 482.
19
… Id.
8
The court also disagreed with Murphy’s interpretation of the statute as
being inapplicable to a municipality, stating that such an interpretation of
section 43.901 would “bar residents and landowners, the parties most directly
affected by an annexation, from challenging an annexation after two years, but
would allow the adjacent municipality to challenge an annexation at any
time.” 20 The court determined that such a result was contrary to the
legislature’s purpose in designating ETJ.21 The court further noted that
although Murphy complained that Parker had annexed land outside of Parker’s
ETJ, that argument was
merely an extension of Murphy’s argument that Parker illegally
annexed land in Murphy’s ETJ. Had Murphy expressly consented
to relinquish its jurisdiction over the land, Parker could have
extended its ETJ to include it. Again, the essence of Murphy’s
complaint is that Parker failed to obtain the requisite consent to the
annexation, consent that is conclusively presumed to have been
given after the expiration of two years under section 43.901.22
The court concluded by stating that “[a]fter two years, section 43.901 created
the conclusive presumption that Murphy consented to the annexation, and
barred any subsequent challenges by Murphy.” 23
20
… Id.
21
… Id.
22
… Id.
23
… Id. (emphasis added).
9
Celina argues that the legislature abrogated the holding in Murphy by
adopting local government code section 51.003.24 That section applies to
municipal acts or proceedings generally, unlike section 43.901, which applies
only to a “municipal ordinance defining boundaries of or annexing area to a
municipality.” 25 Section 51.003 states that after three years, “[a] governmental
act or proceeding of a municipality is conclusively presumed, as of the date it
occurred, to be valid and to have occurred in accordance with all applicable
statutes and ordinances” if a lawsuit or other proceeding challenging the act
has not been filed on or before the three years from the date the act occurred.26
The statute expressly does not apply to “an act or proceeding that was void at
the time it occurred” or “an incorporation or attempted incorporation of a
municipality, or an annexation or attempted annexation of territory by a
municipality, within the incorporated boundaries or extraterritorial jurisdiction
of another municipality that occurred without the consent of the other
municipality in violation of Chapter 42 or 43.” 27
24
… Tex. Loc. Gov’t Code Ann. § 51.003 (Vernon 2008).
25
… Id. §§ 43.901, 51.003.
26
… Id. § 51.003(a).
27
… Id. § 51.003(b)(1), (3).
10
Section 51.003 did not abrogate Murphy’s interpretation of section
43.901; section 51.003 is a validation statute.28 Prior to enacting that section,
the legislature had often enacted validation statutes relating to the acts of
municipalities.29 This particular statute does just that, validating various acts
of municipalities but excluding from its effect void annexations. 30 Nothing in
section 51.003's language removes the presumption of consent found in
section 43.901 or excludes municipalities from the effect of the presumption.
A party may be barred by the statute of limitations from challenging an
annexation that it contends is void.31 If the legislature had wanted to exclude
municipalities from the presumption of consent, it could have done so expressly
by either inserting language to that effect in section 51.003 or by amending
section 43.901, as the legislature eventually did in 2001. It did not do so when
it enacted section 51.003 in 1999.
28
… Id; City of Alton v. City of Mission, 164 S.W.3d 861, 868 (Tex.
App.—Corpus Christi 2005, pet. denied) (noting that section 51.003 is a
validation statute).
29
… See City of West Lake Hills v. State ex rel. City of Austin, 466
S.W.2d 722, 729 (Tex. 1971) (noting that the legislature “has for years
regularly enacted statutes validating in very broad language the proceedings and
boundaries of municipalities”).
30
… Tex. Loc. Gov’t Code Ann. § 51.003(b)(1), (3).
31
… See City of Willow Park v. Bryant, 763 S.W.2d 506, 509 (Tex.
App.—Fort Worth 1988, no writ).
11
In this case, Celina did not bring suit until six years after Pilot Point
annexed the FM 455 property, four years after the running of the two-year
limitation provided in section 43.901 and two years after the running of this
state’s catch-all statute of limitations. 32 Under the supreme court’s ruling in
Murphy, enough time has passed such that any defects in annexation must
yield to the interests of stability.33 Accordingly, we must presume that Celina
consented to Pilot Point’s annexation.34 We note that Celina only had standing
to sue to have the annexation declared void if it suffered some burden peculiar
to itself, as Talley Ranch pointed out in the trial court, and thus the only
complaint that Celina has standing to make is that the annexation encroached
upon Celina’s ETJ or in some other way caused Celina to suffer some kind of
32
… See Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (Vernon 2008); City
of Willow Park, 763 S.W.2d at 509 (holding that challenge to annexation as
being void was barred under four-year statute of limitations in section 16.051).
Pilot Point and Talley Ranch did not move for summary judgment based on
section 16.051, so we do not consider it as a ground for affirming the summary
judgment. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.
1993) (“[A] summary judgment cannot be affirmed on grounds not expressly
set out in the motion or response.”).
33
… See Murphy, 932 S.W.2d at 482.
34
… See id.
12
special burden.35 And because Celina consented to the annexation, it should
not now be heard to complain of it in any manner. 36
While Celina argues that the trial court erred by granting summary
judgment for Pilot Point because Pilot Point’s motion addressed only Celina’s
claim that it did not consent to the annexation and not its claims that the
annexation was void because it did not comply with sections 42.021 and
43.054, Pilot Point’s brief summary judgment motion states that it was entitled
to summary judgment “based upon Celina’s pleadings, which, as a matter of
law, demonstrate that Celina’s suit is time-barred by virtue of [section
43.901].” Pilot Point thus argued that Celina’s suit, not just one of Celina’s
claims, was barred under section 43.901. It was Celina, not Pilot Point, who
argued that section 43.901 applied only to defects based on consent.
Accordingly, we overrule Celina’s first issue.
In its second issue, Celina argues that the trial court erred by denying its
motion for summary judgment, in which it alleged that Pilot Point’s FM 455
annexation was void. Because we have already held the trial court did not err
by granting Pilot Point’s summary judgment on the ground that Celina is barred
35
… See City of West Lake Hills, 466 S.W.2d at 727; Sunchase Capital
Group, Inc. v. City of Crandall, 69 S.W.3d 594, 596 (Tex. App.—Tyler 2001,
no pet.).
36
… See Murphy, 932 S.W.2d at 482.
13
under section 43.901 from challenging Pilot Point’s annexation of the FM 455
property, we further hold that the trial court did not err by denying Celina’s
summary judgment motion. We overrule Celina’s second issue.
In its third issue, Celina argues that the trial court erred by denying
Celina’s motion to dismiss Talley Ranch’s intervention for lack of subject matter
jurisdiction. Celina argues, as it did in the trial court, that Talley Ranch
challenged some of Celina’s annexation ordinances, that its ordinances were
not void and did not impose a special burden on Talley Ranch and, that,
accordingly, Talley Ranch could not challenge those ordinances.
A private party may bring suit to challenge an annexation ordinance, but
only if the ordinance complained of is void and if it imposes a special burden,
such as a tax, on the party.37 But Talley Ranch intervened not to challenge
Celina’s ordinances but as an interested party to Celina’s challenge to Pilot
Point’s actions in incorporating the FM 455 property into Pilot Point’s ETJ.
Talley Ranch stated in its plea in intervention that “Celina has requested [the
trial court] to rule that the development agreement, consent and any plat
approvals related to the Talley Tract are void ab initio” and that “Talley [Ranch]
clearly has a justiciable interest in this proceeding as Celina is attempting to
37
… Sunchase Capital Group, 69 S.W.3d at 596.
14
void [Talley Ranch’s] contracts and development approvals with” Pilot Point.
Talley Ranch was correct that Celina asked the trial court to declare that the
development agreements between Pilot Point and Talley Ranch were void.
Under the rules of civil procedure, “[a]ny party may intervene by filing a
pleading, subject to being stricken out by the court for sufficient cause on the
motion of any party.” 38 If a party has a justiciable interest in a pending suit,
that party may intervene as a matter of right.39 A party has a justiciable
interest in a lawsuit, and thus a right to intervene, when the party’s interests
will be affected by the litigation.40 That interest, however, must be more than
remote or contingent.41
Here, Celina expressly sought to void a development agreement to which
Talley Ranch was a party. Talley Ranch had an interest that would be affected
by the litigation, and this interest was neither remote nor contingent.
Accordingly, the trial court did not err by denying Celina’s motion to strike
Talley Ranch’s intervention.
38
… Tex. R. Civ. P. 60.
39
… In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex. 2008).
40
… Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68,
70 (Tex. App.—Fort Worth 2003, no pet.).
41
… Id.
15
In Celina’s reply brief, it argues that this analysis of Talley Ranch’s
intervention is “not entirely accurate” because Talley Ranch’s plea in
intervention incorporated defenses in Pilot Point’s answer, and Pilot Point had
in its answer challenged some of Celina’s annexation ordinances as void. But
a party does not have to be able to succeed on all claims at issue in a case in
order to intervene. 42 Talley Ranch clearly had a justiciable interest in a cause
of action to set aside an agreement to which it was a party. Whether Talley
Ranch had standing to challenge Celina’s ordinances is a separate question from
whether it could intervene in Celina’s suit at all. Because it had a justiciable
interest in Celina’s suit, the trial court did not err by denying Celina’s motion to
strike. We therefore overrule Celina’s third issue.
Conclusion
Having overruled each of Celina’s three issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.
DELIVERED: August 31, 2009
42
… See Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d
652, 657 (Tex. 1990) (noting that “under Rule 60, a person or entity has the
right to intervene if the intervenor could have brought the same action, or any
part thereof, in his own name, or, if the action had been brought against him,
he would be able to defeat recovery, or some part thereof”) (emphasis added).
16