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Court of Appeals of Texas, Fort Worth

Loban v. City of Grapevine
Texas
Not Reported in S.W.3d, 2009 WL 5183802 (Tex.App.-Fort Worth,2009)

Case Details
Printable Version
Summary:   In this unpublished Texas case, Appellant Jason Loban appeals the trial court's judgment awarding appellee City of Grapevine $10,670.20 in damages. In 2006, Appellant's dogs were declared "dangerous" under the City's municipal ordinance. The City assessed daily impoundment fees and told Appellant that his dogs would be destroyed unless he obtained additional homeowners' insurance and paid $10,242.20 in fees to the City. While Appellant obtained the insurance, he did not pay the fees. Loban filed a petition for injunctive relief stating that he could not pay the $10,242.20 assessed by the City and asking the court to enjoin the destruction of the dogs. The court granted a temporary restraining order preventing the dogs' destruction. Before the temporary injunction hearing, Loban filed a declaratory judgment action challenging the City ordinance defining “dangerous animal” as unconstitutionally vague and challenging his inability to appeal the “dangerous animal” ruling . The City responded with general denials, a request for dismissal, and “all other relief to which [they] are entitled.” At the injunction hearing, both parties argued the merits of the constitutional issues and of the injunction; no evidence was introduced. The court ordered that the dogs be returned to Loban, but awarded the City the monetary award. On appeal, Appellant argued that the trial court's award of $10,670.20 in damages to the City should be reversed because the City did not plead for monetary relief, the issue was not tried by consent, and there was no evidence to support the award. This Court agreed. In finding the monetary judgment void, the Court observed that the City did not put any request for a monetary award in its pleadings and there was no evidence in the record of the amount of the fine.

Judge PER CURIAM delivered the opinion of the court.


Opinion of the Court:

 

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINIONFN1
FN1. See Tex.R.App. P. 47.4.

PER CURIAM.

*1 Appellant Jason Loban appeals the trial court's judgment awarding appellee City of Grapevine $10,670.20 in damages. We vacate and dismiss in part and affirm in part.

On April 5, 2006, a City of Grapevine (City) animal control officer declared two dogs owned by Loban to be “dangerous animals” under a City ordinance. FN2 After Loban asked for a review of the officer's decision,FN3 the Grapevine municipal court affirmed the animal control officer's declaration that the two dogs were dangerous animals.FN4

FN2. See Grapevine, Tex., Code of Ordinances § 6-1 (2009) (effective May 15, 2001, Ordinance No.2001-35, § 1(A), (B)) (defining “dangerous animal”).

FN3. See id. § 6-33(a) (2009) (effective May 15, 2001, Ordinance No.2001-35, § 1(E)) (providing owner's right to request hearing to challenge “dangerous animal” determination).

FN4. See In re Loban, 243 S.W.3d 827, 828 (Tex.App.-Fort Worth 2008, orig. proceeding [mand. denied] ). Loban and the City filed a joint petition for writ of mandamus to compel the county court at law's jurisdiction over Loban's appeal from the municipal court's civil judgment that Loban's dogs were dangerous animals. Id. We held that under Texas Government Code section 30.00014(a) the Tarrant County court at law did not have jurisdiction over an appeal from a municipal court of record and denied the joint petition. Id . at 831; see Tex. Gov't Code Ann. § 30.00014(a) (Vernon Supp.2009).

The City assessed impoundment fees and daily charges for the handling and care of Loban's dogs.FN5 On October 8, 2008, appellee Lawrence Hopkins, Animal Control Supervisor for the City, notified Loban that his two dogs would become the property of the City and would be destroyed unless he obtained additional homeowners' insurance and paid $10,242.20 that he owed in fees and charges. Loban obtained the requisite insurance but did not pay the City the fees and charges. Instead, Loban filed a petition for injunctive relief stating that he could not pay the $10,242.20 assessed by the City and asking the court to enjoin the City and Hopkins from destroying the dogs. The court granted a temporary restraining order preventing the dogs' destruction.

FN5. Grapevine, Tex., Code of Ordinances § 6-40(c) (2009) (effective June 7, 1988, Ordinance No. 88-40, § 24) (setting impoundment fee and care and handling charge).

Before the temporary injunction hearing, Loban supplemented his pleadings by filing a declaratory judgment action challenging the City ordinance defining “dangerous animal” as unconstitutionally vague and challenging his inability to appeal from the municipal court's “dangerous animal” ruling as a violation of his federal and state due process rights. The City and Hopkins filed pleas to the jurisdiction and general denials praying that the court dismiss Loban's suit, deny Loban's petition for temporary and permanent injunction, and award the City and Hopkins “all other relief to which [they] are entitled.”

At the temporary injunction hearing, the parties argued the merits of Loban's constitutional claims and claim for injunctive relief. No evidence was introduced. Following the hearing, on February 12, 2009, the trial court entered a “Final Judgment” ordering as follows:

IT IS THEREFORE ORDERED, DECREED, AND A[D]JUDGED that the City of Grapevine return the two dogs in its custody to Jason Loban. It is further ordered that Jason Loban shall obey all Ordinances of the City of Grapevine and laws of the State of Texas regarding the keeping of dangerous dogs. Lawrence Hopkins is dismissed from this lawsuit.

IT IS FURTHER ORDERED that the City of Grapevine have judgment against Jason Loban in the amount of Ten Thousand Six Hundred Seventy Dollars and Twenty Cents ($10,670.20), for which let execution issue.

Loban moved to suspend enforcement of the judgment pending appeal. This appeal followed.

In two issues, Loban argues that the trial court's award of $10,670.20 in damages to the City should be reversed because the City did not plead for monetary relief, the issue was not tried by consent, and there is no evidence to support the award.FN6 We agree. Although Loban did not present an objection to the trial court attacking the judgment on any of the grounds raised on appeal, he was not required to because the money judgment rendered against him is void.FN7

FN6. A party may not be granted favorable judgment on an unpleaded cause of action in the absence of trial by consent. See Tex.R. Civ. P. 301; Oil Field Haulers Ass'n v. R.R. Comm'n, 381 S.W.2d 183, 191 (Tex.1964); see also Mastin v. Mastin, 70 S.W.3d 148, 154 (Tex.App.-San Antonio 2001, no pet.) (holding that “when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings”).

FN7. See Easterline v. Bean, 121 Tex. 327, 334, 49 S.W.2d 427, 429 (1932) (challenge to void judgment cannot be waived).

*2 A judgment that is not supported by any pleading or tried by consent is void.FN8 The City did not plead for a money judgment against Loban and the issue was not tried by consent. Loban filed a petition for declaratory judgment and for injunctive relief. The City filed a general denial and a plea to the jurisdiction. Nowhere in the City's pleadings is there a request for monetary relief. Nor is there any evidence in the record of the amount of the fine. Therefore, the money judgment against Loban is void.

FN8. Webb v. Glenbrook Owners Ass'n, No. 05-07-01122-CV, 2009 WL 3135179, at *4-5 (Tex.App.-Dallas, Oct.1, 2009, no pet.) (op. on reh'g); see Tex.R. Civ. P. 301 (requiring judgment to conform to pleadings).

We sustain Loban's first issue.FN9 We vacate and set aside that portion of the trial court's judgment awarding the City a money judgment against Loban and affirm the remainder of the judgment.

FN9. In light of these holdings, we need not reach Loban's second issue challenging the sufficiency of the evidence supporting the monetary damages award.


 

 

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