author: Justice MOSELEY.

text:
    Anthony J. BIRD, Appellant, v. Gary KORNMAN and Joseph Van Voorhis, Appellees.
    No. 05-02-01692-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 15, 2004.
    Rehearing Overruled Jan. 12, 2005.

      R. Michael Northrup, Cowles & Thompson, P.C., Keith A. Clouse, Alyson C. Brown, Clouse Dunn Hirsch LLP, Leonard A. Hirsch, Haynes & Boone, Dallas, for appellant.
    Terrell W. Oxford, Susman Godfrey, LLP, Michael P. Lynn, Lynn Tillotson & Pinker, L.L.P., Dallas, for appellees.
    Before Justices MORRIS, WRIGHT, and MOSELEY.
   OPINION

Opinion by

Justice MOSELEY.

In this combined appeal and mandamus proceeding, we consider whether the trial court erred by dismissing with prejudice appellant Anthony J. Bird’s claims against Gary Kornman and an unserved defendant Joseph Van Voorhis when the court ordered Bird to arbitrate his claims against The Heritage Organization, L.L.C. (Heritage). After submission of this appeal, Heritage filed for bankruptcy protection. By separate order, we severed Bird’s appeal against Heritage and that appeal is suspended. Tex.R.App. P. 8.2. We reinstated this appeal as to the non-bankrupt parties.

Because Bird has an adequate remedy by appeal we deny his petition for a writ of mandamus. Because Bird failed to preserve error as to the dismissal of his claims against Kornman, who was before the trial court, we affirm that portion of the order dismissing the claims against Kornman. However, we conclude the trial court’s order dismissing Bird’s claims against Van Voorhis is void because it purports to adjudicate the merits of Bird’s claims against a party not before the court. We vacate the trial court’s order as to Van Voorhis — leaving Bird’s claims against him pending below — and remand for further proceedings.

Factual and PROCEDURAL Background

Based on the record before us, Heritage provided consulting services, including estate planning, tax, insurance, and financial services, to what the parties describe as the “super-wealthy,” meaning individuals with a net worth in excess of $10 million. Heritage’s chief executive was Gary Korn-man; another Heritage employee was Joseph Van Voorhis.

Bird was a sales manager for a life insurance company providing consulting services to wealthy individuals. In 1998, Heritage recruited and hired Bird. They signed a “comprehensive” employment agreement dated August 21, 1998, consisting of fifty-two single-spaced pages. The agreement recited that Bird was given the opportunity to review it and to consult with an attorney of his own choosing before signing it. The agreement also recited that Bird exercised independent judgment in entering into the agreement and did not rely on any representation or agreement not contained in the document. Both parties initialed each page and signed the agreement before a notary. The agreement contained, among other things, a confidentiality provision, a covenant-not-to-compete provision, and an arbitration provision.

After Bird had worked for Heritage for almost four years, a dispute arose between them over the payment of Bird’s commissions and over what Bird characterizes as unethical business practices that Heritage required of its employees. In July 2002 Bird and another Heritage employee filed a joint demand for arbitration against Heritage and Kornman. They requested a declaratory judgment, damages, and an accounting under several causes of action including breach of contract, fraud, and fraud in the inducement. Heritage objected to a joint arbitration with the two employees and sought to have the proceedings severed into separate arbitrations. According to Heritage, the American Arbitration Association (AAA) granted the request and Heritage and Kornman filed separate arbitration proceedings against each employee. In his brief, Bird states that he dropped his original arbitration proceeding because Heritage objected to his selection of an arbitrator and because Heritage filed separate arbitration proceedings against Bird and the other employee.

In August 2002 Bird filed this suit against Heritage, Kornman, and Van Voo-rhis. Bird asserted claims for damages for fraudulent inducement against Heritage, Kornman, and Van Voorhis and for breach of contract against Heritage. Bird also asserted claims against Heritage for a declaratory judgment that the covenant-not-to-compete was invalid and unenforceable, and a temporary and permanent injunction against enforcement of the covenant-not-to-compete. The fraudulent inducement claims were based on alleged misrepresentations by Kornman and Van Voorhis about Bird’s compensation from and future equity ownership in Heritage; Heritage’s marketing practices, trade secrets, and internal operations; Bird’s role in the company and the products he would be required to sell; and the nature of Heritage’s business. Bird did not, however, allege that the arbitration provision was fraudulently induced apart from the entire employment agreement.

Van Voorhis was never served and did not enter an appearance or participate in the case. Heritage and Kornman were served; Heritage (but not Kornman) moved to compel arbitration under the employment agreement, asking for a summary determination of its motion under the holding in Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex.1992). Heritage’s motion, supported by Kornman’s affidavit, argued: (1) the arbitration provision was valid and that Bird’s claims fell within its scope; (2) Bird had recognized the validity of the arbitration provision and its applicability to his claims by seeking arbitration of the same claims in his July 2002 arbitration demand; and (8) by previously demanding arbitration of his claims Bird waived any objection to arbitration. Heritage’s motion also asserted that the arbitration provision applied to Bird’s claims against Kornman and Van Voorhis because they were “affiliates” of Heritage.

Bird filed a response to the motion to compel arbitration supported by his own affidavit. He asserted as defenses that the arbitration provision was unconscionable because the onerous qualification requirements for the arbitrators and other procedural requirements favored Heritage, and because the provision was not mutual in that it allowed Heritage to seek injunc-tive relief from a court to enforce the covenant-not-to-compete but precluded Bird from seeking such relief from a court.

Bird also asserted the arbitration provision was fraudulently induced based on Heritage’s representations through Korn-man and Van Voorhis that: (1) arbitration was necessary to protect Heritage’s proprietary business information; (2) arbitration was more efficient and less costly than court proceedings; and (3) Kornman trusted the highly qualified arbitrators required under the agreement to decide a dispute more than a jury or judge. Bird argues these representations were false because Heritage did not own any proprietary business information not generally known or available from other sources, Heritage did not intend arbitration to be quick and efficient because it has required multiple arbi-trations regarding a single claim, and the true reason Heritage wanted the arbitration provision was to conceal its allegedly unethical business practices. Bird claimed he would not have agreed to the arbitration provision if he had known the truth about these representations.

Bird requested an evidentiary hearing on the motion to compel because he claimed his affidavit controverted the material facts necessary to determine whether the arbitration provision was enforceable. Instead, the trial court conducted a summary hearing on Heritage’s motion to compel arbitration. No evidence was adduced at the hearing, but the trial court heard argument from the attorneys for Heritage, Kornman, and Bird. Kornman’s attorney entered an appearance for Korn-man and argued in favor of Heritage’s motion to compel arbitration. See Tex.R. Crv. P. 120 (defendant may enter appearance in open court). After hearing argument, the trial court took the motion under advisement.

The trial court later signed, without alteration, the proposed order submitted by Heritage with its motion to compel. The order granted the motion to compel arbitration and ordered Heritage and Bird to arbitrate all present or future disputes between them in the pending arbitrations filed by Heritage and Kornman against Bird. In addition, the order dismissed with prejudice all of Bird’s claims against Heritage, Kornman, and Van Voorhis, including Bird’s claims against Heritage that the court had ordered to be arbitrated. Bird did not file any post-judgment motions with the trial court.

Bird appeals the trial court’s order, asserting ten issues. In addition to his appeal, Bird filed an original proceeding in this court seeking a writ of mandamus based on the same issues as his appeal. Bird’s original proceeding also seeks an order prohibiting the AAA, which was not a party below, from proceeding with a single arbitrator because the arbitration agreement calls for three arbitrators. We consolidated the original proceeding into the appeal.

Because of Heritage’s bankruptcy and our severance of the appeal as to Heritage, we consider only the issues relating to Kornman and Van Voorhis. We characterize those issues as follows: (1) whether Bird may raise his complaints in the appeal rather than in an original mandamus proceeding; (2) whether the trial court erred in dismissing Bird’s claims against Van Voorhis with prejudice when the court had not acquired personal jurisdiction over Van Voorhis; and (3) whether Bird preserved error regarding the dismissal of his claims against Kornman. Because of our resolution of these issues, it is unnecessary to reach Bird’s other issues.

Appeal VeRsus Mandamus

To determine whether we should address Bird’s issues in the context of an appeal or an original proceeding, we first consider our jurisdiction over Bird’s appeal. The trial court dismissed Bird’s claims against Kornman and Van Voorhis with prejudice based on Heritage’s motion to compel arbitration. There is sufficient indication in the record that the arbitration agreement is subject to the Federal Arbitration Act (FAA) as well as the Texas Arbitration Act (TAA). Moreover, the parties do not dispute the applicability of the FAA to the arbitration agreement at issue. Normally an order compelling arbitration is interlocutory and not appealable under either act. See Tex. Civ. PRAC. & RemlCode Ann. § 171.098; Lipshy Motorcars, Inc. v. Sovereign Assocs., Inc., 944 S.W.2d 68, 69 (Tex.App.-Dallas 1997, no writ). The order in this case, however, only compelled arbitration of Bird’s claims against Heritage. On its face it dismissed with prejudice all of Bird’s claims against all defendants, dismissed the lawsuit with prejudice, taxed costs against Bird, and denied all other relief requested. Thus, the order disposed of all claims and all parties and was a final judgment for purposes of appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex.2001). We have jurisdiction over appeals from final judgments. Id. at 195; see Tex. Civ. PRAC. & Rem.Code Ann. § 51.012 (Vernon 1997); Tex. Gov’t Code Ann. § 22.220(a) (Vernon 2004). Because the order dismissing Bird’s claims against Kornman and Van Voorhis is a final judgment, we have jurisdiction over all issues in this appeal. As a result, we conclude Bird has an adequate remedy at law and we deny Bird’s petition for a writ of mandamus.

We also deny Bird’s request for a writ of mandamus preventing the AAA from proceeding with a single arbitrator. Bird has an adequate remedy under the TAA for the appointment of arbitrators. See Tex. Civ. PRAC. & Rem.Code Ann. § 171.041 (court on application of party shall appoint qualified arbitrators if agreed method fails or cannot be followed). Further, Bird has not shown that the writ is necessary to enforce our jurisdiction to decide the appeal. See Tex. Gov’t Code Ann. § 22.221(a) (court of appeals may issue writ of mandamus and all other writs necessary to enforce its jurisdiction). Absent this showing, we have no authority to issue a writ of mandamus to a private organization such as the AAA. See id. § 22.221(b) (court of appeals may issue writ of mandamus in accordance with law against judge of district or county court within court of appeals district); Silva v. Klevenhagen, 833 S.W.2d 746, 747 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding) (court of appeals lacked jurisdiction to issue writ of mandamus to sheriff because he was not judge of district or county court and writ was not necessary to enforce jurisdiction of court of appeals). Having denied Bird’s original proceeding, we now address the issues raised in the context of Bird’s appeal.

Dismissal With PREJUDICE

Bird’s first four issues address the propriety of the trial court’s judgment dismissing his claims with prejudice. He argues the trial court erred in: (1) dismissing all of his claims with prejudice; (2) dismissing with prejudice his claims against Van Voorhis, who was never served and never appeared; (3) entering a judgment dismissing his claims against Kornman and Van Voorhis, neither of whom filed a pleading requesting the judgment entered; and (4) entering a final judgment instead of staying any proceedings under the case. We address only those issues concerning Kornman and Van Voorhis.

A. Disposition of Claims Against Van VOORHIS

Bird complains the trial court erred in dismissing with prejudice his claims against Van Voorhis because Van Voorhis was never served, and therefore was not before the court. Because Bird did not file a motion or otherwise complain below about the trial court’s judgment dismissing his claims with prejudice, we must determine whether his complaints have been preserved for appeal. See Tex.R.App. P. 33.1.

Bird argues that the judgment dismissing his claims with prejudice against Van Voorhis is void because the trial court did not have jurisdiction over Van Voorhis. Bird argues that a void judgment may be attacked and set aside in a direct attack such as his appeal.

A judgment is void where it appears that the trial court did not have subject matter jurisdiction, jurisdiction over the parties, capacity to act as a court, or jurisdiction to render the particular judgment at issue. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990) (per curiam). When faced with a void judgment on appeal, the appellate court should declare the judgment void. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995) (citing Fulton v. Finch, 162 Tex. 351, 355-56, 346 S.W.2d 823, 827 (1961)). The appellate court has no jurisdiction to consider the merits of an appeal from a void judgment. Ins. Co. of Pa. v. Martinez, 18 S.W.3d 844, 847 (Tex.App.-El Paso 2000, no pet.); Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.-Dallas 1994, writ denied). Because jurisdiction is fundamental, it may be raised for the first time on appeal without the usual requirements for preservation of error or assignment of error. Nuchia v. Woodruff, 956 S.W.2d 612, 616 (Tex. App.-Houston [14th Dist.] 1997, pet. denied).

To issue a binding judgment concerning a party a court must possess personal jurisdiction over that party. See CSR Limited v. Link, 925 S.W.2d 591, 594 (Tex.1996). Such personal jurisdiction is invoked by the party’s appearance before the court, or by the lawful service of process upon the party. TAC Am., Inc. v. Boothe, 94 S.W.3d 315, 318-19 (Tex.App.-Austin 2002, no pet.); see also Tex.R. Crv. P. 120, 124. Without personal jurisdiction over Van Voorhis the trial court had no jurisdiction to enter a judgment concerning Bird’s claims against him. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex.1991) (error to enter judgment against entity never made a party); Fuqua v. Taylor, 683 S.W.2d 735, 738 (Tex.App.-Dallas 1984, writ ref'd n.r.e.) (“Judgment may not be granted in favor of a party not named in the suit as a plaintiff or a defendant.”); see also Tex.R. Civ. P. 161 (unserved defendant dismissed from suit “shall [not] be thereby exonerated from any liability”).

The record shows that Van Voorhis was never served with process and never entered an appearance in this case. Thus, the trial court lacked jurisdiction over Van Voorhis, and its judgment disposing of Bird’s claims against Van Voorhis on the merits is void. We vacate that part of the trial court’s order dismissing Bird’s claims against Van Voorhis with prejudice and, without regard to the merits, remand Bird’s claims against Van Voorhis for further proceedings. See Latty, 907 S.W.2d at 486.

B. Disposition of Claims Against KoRN-man

Bird also complains that the trial court erred in dismissing with prejudice his claims against Kornman because, although Kornman had been served, he had not filed an answer seeking the dismissal of the claims against him or a motion seeking to compel arbitration of those claims. Kornman argues that this complaint was not preserved for appeal because Bird never presented it to the trial court.

The trial court had jurisdiction of the subject matter and parties with respect to Bird’s claims against Kornman. Kornman entered his appearance and was before the court for all purposes. Thus, the trial court had jurisdictional power to adjudicate Bird’s claims against Kornman on the merits, even if it would be error to do so. See Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.2003) (judgment allegedly divesting husband of separate property “is not void because a court has jurisdiction to characterize community property — even if it does so incorrectly”). For example, a dismissal for want of prosecution is not a decision on the merits and should not be with prejudice. See Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex.1980); Melton v. Ryander, 727 S.W.2d 299, 303 (Tex.App.-Dallas 1987, writ ref'd n.r.e.). However, the error in dismissing a case with prejudice cannot be raised for the first time on appeal and must be presented to the trial court. See El Paso Pipe & Supply Co. v. Mountain States Leasing, Inc., 617 S.W.2d 189, 190 (Tex.1981); Andrews v. ABJ Adjusters, Inc., 800 S.W.2d 567, 568-69 (Tex.App.-Houston [14th Dist.] 1990, writ denied). Because the trial court had jurisdictional power to act on Bird’s claims against Kornman, Bird was required to present his complaint about the dismissal with prejudice to the trial court. Tex. R.App. P. 33.1; McCain v. NME Hospitals, Inc., 856 S.W.2d 751, 755 (Tex.App.-Dallas 1993, no writ); Andrews, 800 S.W.2d at 568-69. To complain about an error in the judgment rendered, Bird was required to present the error to the trial court in a post-judgment motion such as a motion to alter or correct the judgment or motion for new trial. Arthur’s Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 997 S.W.2d 803, 816 (Tex.App.-Dallas 1999, no pet.).

Bird points out that Kornman filed no pleadings seeking dismissal with prejudice. In general, a trial court may not grant relief to a party in the absence of pleadings to support that relief. Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex.1983); Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979); see also Tex.R. Civ. P. 301 (judgment must conform to pleadings). Absent such pleadings, Bird contends the order dismissing with prejudice his claims against Kornman is void, and this error can be raised for the first time on appeal.

However, as long as the court entering a judgment has jurisdiction of the parties and the subject matter and does not act outside its capacity as a court, the judgment is not void. Forrest, 795 S.W.2d at 703 (citing Cook v. Cameron, 733 S.W.2d 137,140 (Tex.1987)). The trial court’s subject matter jurisdiction was invoked by Bird’s pleadings for affirmative relief. That jurisdiction included the power to deny the relief, even if it would be erroneous to do so. See El Paso Pipe & Supply, 617 S.W.2d at 190; Andrews, 800 S.W.2d at 568-69. The trial court also had personal jurisdiction over both Bird and Korn-man. Thus, it had jurisdiction to rule on Bird’s claims against Kornman, including the power to dismiss them. Therefore, its order doing so is not void for lack of jurisdiction. We resolve Bird’s first four issues relating to Kornman against him.

We have disposed of all issues as to Kornman and Van Voorhis. Because we have severed Heritage from this appeal, it is unnecessary for us to discuss Bird’s remaining issues. Tex.R.App. P. 47.1.

Conclusion

We deny Bird’s petition for writ of mandamus. We have severed Bird’s appeal of the trial court’s order as to Heritage and that appeal is suspended due to Heritage’s bankruptcy. We vacate that part of the trial court’s order dismissing Bird’s claims against Van Voorhis with prejudice and, without regard to the merits, remand those claims for further proceedings. The claims remain pending before trial court with Van Voorhis as a named but unserved defendant. We affirm that part of the trial court’s judgment dismissing Bird’s claims against Kornman with prejudice.

      . Bird stated in his demand that he was a party to an arbitration agreement in a written contract dated August 21, 1998, the date of his employment agreement.

      . Bird complains that Heritage filed this motion under seal without first obtaining an order sealing the record under Tex.R. Civ. P. 76a.

      . Each of the three arbitrators was required to be a chief executive officer and at least fifty percent owner of a for-profit corporation in Texas with gross revenues of over $30 million for the prior year; not to be engaged in any consulting business including law, accounting, insurance, tax, or financial planning; to have personally earned at least $300,000 from that firm in the prior year; to sign a confidentiality agreement satisfactory to Heritage; and to have had no prior relationship of any kind with either of the parties.

      . The trial court did not expressly order arbitration of Bird’s claims against Kornman.

      . 9 U.S.C. §§ 1-16.

      . Tex. Civ. Prac. & Rem.Code Ann. §§ 171.001-.098 (Vernon Pamph.2004-05).


source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    CITY OF AUSTIN, Appellant, v. HYDE PARK BAPTIST CHURCH, Appellee.
    No. 03-03-00561-CV.
    Court of Appeals of Texas, Austin.
    Nov. 18, 2004.
    David H. Donaldson Jr., Peter D. Kennedy, Graves, Dougherty, Hearon & Moody, PC, Austin, for Appellant.
    Walter H. Mizell, Brown McCarroll, LLP, Austin, for Appellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

Appellee Hyde Park Baptist Church sued appellant the City of Austin over the City’s decision to suspend a site-development permit that would have allowed the Church to construct a parking garage on Church property. The permit was suspended by the Austin City Council after the Church’s neighbors complained that the parking garage would not comply with an area-specific ordinance enacted in 1990 to govern development of the Church’s property. The district court granted summary judgment in favor of the Church, finding that the City Council had no authority to hear the appeal and that the permit complied with the applicable ordinance, and the City appealed. We affirm the district court’s judgment.

Factual and Procedural Background

The Church owns several tracts of property in the area of central Austin known as Hyde Park. The property is zoned SF-3. Generally, construction on property zoned SF-3 is subject to a 45% impervious-cover limitation under the City’s Land Development Code (LDC). The LDC’s limitations are, however, subject to modification.

The tract in question is bounded north and south by 40th and 39th Streets, east and west by Speedway and Avenue D. The Church’s efforts to expand its facilities have been a source of contention with its neighbors for many years. In 1990, in an effort to resolve the long-standing disagreement, the City arranged meetings between members of the Hyde Park Neighborhood Association (the “Association”) and the Church. Among the many issues discussed was the Church’s need for more parking. The parties came to a mediated resolution, which in 1990 was incorporated by the City into an ordinance known as the “Hyde Park Conservation and Combining District No. 1” (the “Hyde Park NCCD”). Austin, Tex., Code of Ordinances No. 900830-Q (1990). The Hyde Park NCCD modified the site-development standards applicable to the Church’s property and authorized, among other things, a multi-storied parking facility “on all or a portion of the western half of [Tjract 2” within the applicable setback lines.

In 2000, the Church filed an application with the Director of the Planning and Development Department (the “Director”) for a site-development permit to construct the parking garage on the western half of Tract 2. After the Director approved the permit, the Association and other “interested parties” filed “Site Plan Appeal[s],” alleging that the site plan, specifically the size of the proposed parking garage, did not comply with the Hyde Park NCCD and the City’s LDC. The Church argued that under the Hyde Park NCCD it had the right to build the parking garage on the entire western half of Tract 2 subject only to the setback and height restrictions. Opponents argued that the property was still subject to the LDC and its impervious-cover limitations. The City Council heard the appeals and then suspended the Church’s permit.

The Church sued the City, challenging the City Council’s authority to hear the appeals and claiming that the permit issued by the Director complied with the Hyde Park NCCD. Both parties moved for summary judgment, advancing different readings of the NCCD: the City argued that the City Council had the authority to entertain the appeals and that the permit suspension was justified; the Church argued that there was no statutory authority for the Council to hear the appeals and that the suspension was unjustified. The district court granted the Church’s motion for summary judgment on four grounds: (1) the City Council lacked authority to entertain the neighbors’ appeals of the Church’s site-development permit; (2) the Church’s site-development plan met the applicable administrative standards; (3) the language of the Hyde Park NCCD allowed the church to construct a parking garage on “all or a portion of’ the tract following the “height limits and setback requirements specified in the NCCD”; and (4) the “language in the NCCD setting out the development standards for the parking garage” was unambiguous.

The City raises six issues on appeal: whether the Hyde Park NCCD permits the Church to construct a five-story parking garage (1) without regard to impervious-cover limits and (2) covering all of the western half of Tract 2; (3) whether the City’s interpretation of the Hyde Park NCCD is entitled to deference; (4) whether the City’s interpretation is unreasonable and lacks rational support in the text of the Hyde Park NCCD and its legislative history; (5) whether the City Council was authorized to hear the appeal; and (6) whether this Court should consider the substantive issue regardless of the determination of any procedural questions.

Discussion

For purposes of this appeal, we will consolidate the City’s first four issues into one substantive issue: whether Part 3(f) of the Hyde Park NCCD modified the LDC’s site-development standards for impervious cover. The dispute centers on the following sentence found in the Hyde Park NCCD: “A multi-story off-street parking facility can be constructed on all or a portion of the western half of Tract 2” within applicable setback lines. The issue is whether the phrase “all or a portion” modified the LDC’s underlying SF-3 impervious-cover limits, thus authorizing the Church to construct a garage on the entire western half of Tract 2 subject only to setback requirements. The disputed passage is found in Part 3(f) of the Hyde Park NCCD, which reads as follows:

The use of Tract 2 for a multi-story off-street parking facility, surface off-street parking, or single-family residential use is permitted, and all other uses are prohibited. A multi-story off-street parking facility may be constructed on all or a portion of the western half of Tract 2 (the “Proposed Garage”) and may equal but not exceed the height of the parking facility that currently is located on the eastern half of Tract 2 (the “Existing Parking Facility”), with the following building setback lines:
(i) from West 40th Street, a distance equal to the building setback of the Existing Parking Facility from West 40th Street;
(ii) from West 39th Street, a distance equal to the building setback of the Existing Parking Facility from West 39th Street; and
(iii) from Avenue D, no setback from the public right-of-way is required unless the alley separating the Proposed Garage from the Existing Parking Facility is vacated. If that alley is vacated, the building setback line shall be 10 feet from the Avenue D property line.
Notwithstanding the preceding sentence, if the Proposed Garage abuts a lot used for a single-family residential use, there shall be a building setback line established 25 feet from the common property line with the abutting lot; and the height of the Proposed Garage shall not exceed 30 feet at any point closer than 50 feet from the common property line with the abutting lot. Portions of a structure constructed below existing grade may be built with no subterranean setback from public right-of-way and a minimum side yard subterranean setback of five feet, if the subterranean portion of the structure is not visible and the surface is grass and/or landscaped. Development of surface parking on a portion of Tract 2 shall be subject to the approval by the [Director] of a site plan that conforms with the NCCD plan attached and incorporated into this ordinance as Exhibit “B.” Site development standards otherwise established by the Land Development Code are hereby modified to the extent necessary to authorize the surface parking development conforming to the NCCD plan attached as Exhibit “B.” []

Austin, Tex., Code of Ordinances No. 900830-Q, Part 3(f) (1990) (emphasis added).

A. Standard of Review

Statutory construction and the propriety of a summary judgment are questions of law, and we review a trial court’s summary judgment based on statutory construction de novo. City of Pflugerville v. Capital Metro. Transp. Auth., 123 S.W.3d 106, 109 (Tex.App.-Austin 2003, pet. denied). When both parties move for summary judgment, each bears the burden of establishing its entitlement to summary judgment as a matter of law. Id. If a trial court grants one motion and denies another on specific grounds, we consider all grounds presented to the district court, preserved on appeal, and necessary for a final disposition. Id.

In construing an ordinance, we use the same rules as we do when construing a statute and seek to discern the legislative intent. Board of Adjustment v. Wende, 92 S.W.3d 424, 430 (Tex.2002). Our role in construing a statute is well-established:

Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the intendment of a statute, giving full effect to all of its terms. But they must find its intent in its language and not elsewhere .... They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.

RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985) (quoting Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920)).

In making our determination, we look first to the plain meaning of the words of the ordinance. See Wende, 92 S.W.3d at 430; Upjohn Co. v. Rylander, 38 S.W.3d 600, 607 (Tex.App.-Austin 2000, pet. denied). If a legislative body does not define words or phrases, we should apply their ordinary meaning and will not enlarge the meaning of words or phrases beyond their ordinary meaning. Monsanto Co. v. Cornerstones Mun. Util. Disk, 865 S.W.2d 937, 939 (Tex.1993). We are to read every word, phrase, and expression as if it were deliberately chosen and presume that words excluded from the statute were excluded purposefully. Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Disk, 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied). When construing a phrase within a statute, we should consider the associated words and the context in which they appear. Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex.1994). If the meaning of an ordinance is doubtful or ambiguous, we will give serious consideration to the construction given it by the governmental body charged with its enforcement or administration. Texans to Save the Capitol, Inc. v. Board of Adjustment, 647 S.W.2d 773, 776 (Tex.App.-Austin 1983, writ ref d n.r.e.). However, “Texas courts have universally adopted the ‘clear and unambiguous meaning’ test,” under which we may “interpret the ordinance only if the language’s meaning is not clear and plain on the law’s face. If the language is clear and plain, the court is bound by the statutory language’s ‘plain meaning.’ ” Texans to Save the Capitol, 647 S.W.2d at 775 n. 4; see also Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 273 (1944) (“in view of the doubt as to the meaning of the provisions of’ statute in question, long-standing construction by governmental entity charged with statute’s enforcement is entitled to serious consideration); Seawall East Townhomes Ass’n, Inc. v. City of Galveston, 879 S.W.2d 363, 364 (Tex.App.-Houston [14th Dist.] 1994, no writ) (“When the words in an ordinance or statute are clear, the ordinance must be given its literal interpretation.”); but see Tennessee Gas Pipeline Co. v. Rylander, 80 S.W.3d 200, 203 (Tex.App.-Austin 2002, pet. denied) (in construing statute, “courts may consider, regardless of whether the statute is ambiguous,” statute’s administrative construction (emphasis added)). In other words, if the disputed phrase is clear and unambiguous, extrinsic aids and rules of construction are inappropriate and the ordinance should be given its common meaning.

B. Analysis

Our objective in construing the Hyde Park NCCD is to discern the City’s legislative intent, considering first the plain meaning of the words used in the NCCD. See Wende, 92 S.W.3d at 430. We should discern a meaning that is consistent with the LDC as modified by the Hyde Park NCCD. See Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex.2001) (“When possible, each sentence, phrase, clause and word is given effect, so that the statute makes sense as a cohesive whole.”); Hammond v. City of Dallas, 712 S.W.2d 496, 498 (Tex.1986) (“We must interpret a city charter by reading it as a whole and harmonizing its various provisions as far as possible.”).

Initially, we note that under the Hyde Park NCCD, Tract 2 was not restricted to use for a single-family residence or duplex but could also be used for surface parking or a parking garage. If used for a parking garage, the garage could at most be as tall as the existing five-story parking garage located on the eastern half of Tract 2. The garage could be no closer to 39th and 40th Streets than the existing parking garage, no setback was required from Avenue D unless the alley separating the existing garage and the proposed garage was vacated, and a twenty-five foot setback was required if the proposed garage abutted a lot used for a single-family residence. Thus, Part 3(f) clearly modified the use, height, and setback restrictions otherwise applicable to property zoned SF-3. The only missing component was some provision for the parking garage’s overall bulk. The issue, then, is whether the phrase “on all or a portion of the western half of Tract 2” modified the LDC’s impervious-cover limitations.

The word “on” indicates “position” or “location.” Webster’s Third New International Dictionary 1574 (Phillip B. Gove ed., 1986). “All” means the “whole amount or quantity of’ or “as much as possible.” Id. at 54. “Portion” means “part of the whole” or “limited amount or quantity.” Id. at 1768. Using the plain meaning of the phrase “on all or a portion of,” we must conclude that the phrase expressed in quantitative terms the permissible bulk or size of the parking garage. We can discern no other meaning for the pirrase than to authorize the Church to build on as much of the western half of Tract 2 as it saw fit, provided the outer boundary of the building did not encroach upon the portion of the tract reserved by the setbacks.

It is helpful to read Part 3(f) without the disputed language. When we compare “[a] multi-story off-street parking facility may be constructed on the western half of Tract 2,” with “[a] multi-story off-street parking facility may be constructed on all or a portion of the western half of Tract 2,” it is clear that the Hyde Park NCCD was intended to modify the LDC limitations to allow the Church to use the entire western half of Tract 2, less the setback restrictions, for the construction of a parking garage. Without the “on all or a portion” language, the Hyde Park NCCD simply authorizes the Church to construct a parking garage somewhere on the western half of Tract 2. With the phrase, the Hyde Park NCCD authorizes the Church to construct a parking garage on as much of the western half of Tract 2 as it chooses, within the setback lines. We must presume the phrase was intended to have meaning and we can comprehend no other meaning for the phrase other than to establish the size of the parking garage. Consequently, we can only conclude that Part 3(f) establishes all relevant site-development standards: the parking garage’s height, location, and bulk.

The City argues that this interpretation conflicts with other portions of the Hyde Park NCCD, specifically, Parts 3(j), (k), and (n). Part 3(j) reads:

Development of all or any portion of Tract 6 shall be subject to the approval by the [Director] of a site plan that conforms with either of the NCCD plans attached and incorporated into this ordinance as Exhibit[s]_ Site development standards otherwise established by the [LDC] are hereby modified to the extent necessary to authorize development in accordance with either of the NCCD plans attached.

Austin, Tex., Code of Ordinances No. 900830-Q, Part 3(j) (1990) (emphasis added). Part 3(k) refers to development on Tract 7 and is similarly worded, but lists specific activities for which the property may be used and specific uses to which it may not be put. Id., Part 3(k). Part 3(n) states:

The decision of the [Director] to approve or deny a site plan submitted to develop all or any portion of Tract 2, 6, 7, or 8 in accordance with an NCCD plan attached as an exhibit to this ordinance, if appealed, shall be appealed directly to the City Council.

Id., Part 3(n) (emphasis added). The City contends that our interpretation of “all or a portion” in Part 3(f) is inconsistent -with the use of the phrase in Parts 3(j), (k), and (n) of the Hyde Park NCCD. We disagree.

The descriptive phrase in dispute here has the same meaning in all four parts but is used differently in Part 3(f) than in the other three parts. Part 3(n) simply governs an appeal from the Director’s approval of certain development plans. Parts 3(j) and (k) allow development in conformity with plans that were prepared and attached to the Hyde Park NCCD as exhibits; the exhibits, not the text of the NCCD, show what portion of each tract is subject to use. In Parts 3(j), (k), and (n), “all or any portion” does not grant any authority to develop the entirety of the referenced tracts, nor is it used to describe the surface area that may be used. Only in Part 3(f)’s provisions related to the parking garage does the phrase describe the surface area that may be put to a specified use. Thus, we see nothing in Parts 3(j), (k), or (n) that would lead us to a different interpretation than the one we have reached.

The City also points out that the “all or any portion” phrase in (j) and (k), as well as in Part 3(f) in conjunction with plans for a surface parking lot, is followed by what the City calls the “omnibus waiver,” which states, “Site development standards otherwise established by the LDC are hereby modified.” The City opines that the omnibus waiver would be superfluous if “all or any portion,” without more, was intended to waive the provisions of the LDC.

We conclude that Part 3(f) includes no omnibus waiver in connection with the parking garage option because such a waiver was unnecessary. The Hyde Park NCCD expressly “modified” the LDC’s site-development standards generally applicable to property zoned SF-3. We further note (i) that the Hyde Park NCCD distinguished between plans outlined in the text of the ordinance, such as this proposed garage, and those attached as exhibits to the NCCD in the form of drawings of planned parking lots and (ii) that the omnibus waiver, in every instance, was used in conjunction with a “plan attached as an exhibit.” The omnibus waiver was used in Part 3(f) only as it related to the option of constructing a surface parking lot on the western half of Tract 2, a sketch of which was “attached as an exhibit.” There is no exhibit, however, depicting the size and shape of a proposed parking garage. The omnibus waiver, then, applies only to those projects depicted in exhibits attached to the Hyde Park NCCD.

It is worth noting that the impervious cover created by the surface lot, which the Church constructed in about 1990 and which has been in use for the past fourteen years, amounts to 88.2% of the total surface area of the tract in question — more than the impervious cover created by the proposed parking garage. The impervious cover allowed at the inception of the Hyde Park NCCD demonstrates a legislative intent to allow impervious cover on the tract well in excess of the limits set out in the LDC and demonstrates that the City was aware of and had considered the impervious cover issue well before plans for this parking garage were presented for approval.

The City also argues that the “on all or a portion” language is too “informal” to be considered to have waived the impervious-cover limitations. The City points us to the language in Part 3(h) which specifically limits the amount of impervious cover on Tract 4 to ninety percent. The City contrasts the use of a specific percentage with the use of the more general “all or a part of’ and concludes that, if the Hyde Park NCCD was intended to modify the LDC’s impervious-cover limits, it would have used similarly formal language.

We believe it is clear that when the Hyde Park NCCD granted the Church the right to construct a parking garage “on all or a portion of the western half of Tract 2,” absent some indication to the contrary, the word “all” served to fix the amount of surface area and, in doing so, modified the usual impervious-cover limitations placed on property zoned SF-3. In short, we find that Part 3(f) is clear and unambiguous and sets out all the criteria necessary to determine the size of the parking facility. Use of the entire western half of the tract for a parking garage is limited only by the height and setback restrictions, which serve to confine the garage to a certain portion of the tract. This interpretation is consistent with the rest of the Hyde Park NCCD. Accordingly, we overrule the City’s first four issues.

Conclusion

In construing the Hyde Park NCCD, we have given effect to the plain meaning of the disputed provisions. We conclude that in granting the Church the right to construct a parking garage “on all or a portion of the western half of Tract 2,” the Hyde Park NCCD modified the LDC’s building — and impervious-cover limitations. Having determined the substantive question before us, we need not address the City’s fifth and sixth issues. We affirm the district court’s judgment granting the Church’s motion for summary judgment and denying the City’s motion.

      . Property zoned SF-3 can be used for single-family residences or duplexes. Austin, Tex., Land Dev.Code § 25-2-57 (2004).

      .The parties discuss both impervious- and building-cover limitations. "Impervious cover” is the "total horizontal area of covered spaces, paved areas, walkways, and driveways.” Id. § 25-1-23 (2004). "Building cover” is part of impervious cover and is defined as "the area of a lot covered by buildings or roofed areas, but excludes ground level paving, landscaping, open recreational facilities, incidental projecting eaves, balconies, and similar features.” Id. § 25-1-21(10) (2004). We will use "impervious cover” to include building cover. The standards for property zoned SF-3 are:
      Maximum Height: 35 feet
      Minimum Setbacks:
      Front Yard: 25 feet
      Street Side Yard: 15 feet
      Interior Side Yard: 5 feet
      Rear Yard: 10 feet
      Maximum Building Coverage: 40%
      Maximum Impervious Coverage: 45%

        Id. § 25-2-492(D) (2004).

      . A Neighborhood Conservation and Combining District (an “NCCD”), for example, is a regulation modifying the “use and site development regulations of a base district ... in accordance with a neighborhood plan." Id. § 25-2-371 (2004).

      . A "setback line” is "a line within a lot parallel to and measured from a corresponding lot line, forming the boundary of a yard and governing the placement of structures and uses on the lot.” Id. § 25-1-21(94) (2004). The boundaries applicable here were established relative to 39th and 40fh Streets, Avenue D, and an alley running north/south that divided Tract 2 in half. The Church already had a five-story parking garage on the eastern half of Tract 2, and the setbacks applicable to the new garage were to mirror the setback restrictions applicable to the existing facility.

      . The City also asserted estoppel as a ground for summary judgment but does not urge that ground on appeal.

      . The district court initially granted summary judgment for the Church on only the issue that the City lacked authority to hear the appeals. The City filed a motion for new trial, asking that it be allowed to consider the substantive issue of whether the Church's plans satisfied the Hyde Park NCCD, and the district court granted the motion. After a hearing related to the substantive issue, the court again granted the Church summary judgment, this time deciding that the Church's plans satisfied the Hyde Park NCCD.

      . Exhibit B is a sketch of the surface parking lot that could be located on Tract 2. According to an affidavit entered into evidence, that surface lot was constructed and has been in use since about 1990. The existing lot has 88.2% impervious cover, and the proposed parking garage would have 85.8% impervious cover.

      . We also note that the phrase “all or a portion” appears four times in the LDC: sections 25-6-55 concerning the dedication of a right of way, 25-6-323 concerning alleyways, 25-6-501 concerning off-street parking, and 25-4 — 81 concerning applications for plat approvals. See Austin, Tex., Land Dev.Code §§ 25-4-81, 25-6-55, 25-6-323, 25-6-501 (2004). Its use in those four instances is consistent with our interpretation of its meaning in the Hyde Park NCCD, namely, to describe the whole amount or some portion thereof.

      . Part 2 of the Hyde Park NCCD states that construction "shall conform with the use and site development regulations established by the applicable base zoning district and all other applicable regulations established by the [LDC], as such regulations may be modified by the NCCD regulations set forth in PART 3 of this ordinance.” Austin, Tex., Code of Ordinances No. 900830-Q, Part 2 (1990). Part 3(a) states, "The applicable provisions of [the LDC] are modified in the Hyde Park Civic NCCD in accordance with the sub-paragraphs of this PART 3." Id., Part 3(a).

      . We note the similarly "informal” language used to fix the height of the garage — "equal but not exceeding] the height of the parking facility that currently is located on the eastern half of Tract 2,” with further restrictions depending on the abutting lot — and the setback lines — "a distance equal to the building setback of the Existing Parking Facility” from 39th and 40th Streets. What is important is that each standard, including the "all or a portion” language, can be given a certain measurement fixing the maximum size of the parking garage.

      . Issues five and six concern whether the City Council had the authority to entertain a direct appeal from the Director’s decision to grant the development permit under the Hyde Park NCCD. However, because we have examined the substance of the City’s decision, we need not discuss whether the appeals procedure should apply to this situation.


author: Chief Justice THOMAS.

text:
    Ex parte Cornelius Sylvester SMITH, Jr.
    No. 05-04-00832-CR.
    Court of Appeals of Texas, Dallas.
    Nov. 19, 2004.
    Rehearing Overruled Jan. 13, 2005.
    LaDawn H. Conway, Munsch, Hardt Kopf & Harr P.C., Dallas, for Appellant.
    William T. (Bill) Hill, Jr., Karen R. Wise, Asst. Dist. Atty., Dallas, for State.
    Before Chief Justice THOMAS and Justices WHITTINGTON and FRANCIS.
   OPINION

Opinion by

Chief Justice THOMAS.

Cornelius Sylvester Smith, Jr. was a member of the Alpha Phi Alpha fraternity at Southern Methodist University (SMU). He, along with several others, required Braylan Curry, another SMU student who was pledging Alpha Phi Alpha, to consume large quantities of water as part of Curry’s initiation. As the result of drinking the large amount of water, Curry suffered convulsions and was hospitalized in intensive care. Smith has been charged by indictment with the felony offense of aggravated assault causing serious bodily injury. By pretrial writ of habeas corpus, appellant challenged the district court’s jurisdiction over the prosecution. Appellant claimed the charge arose out of a hazing incident, and because the hazing statute is more specific, prosecution should be brought under it. Because hazing is a misdemeanor, appellant argued, the district court has no jurisdiction over the prosecution. Following a hearing, the trial court denied appellant’s requested relief. We hold appellant’s in pari mate-ria claim is not cognizable by pretrial writ of habeas corpus. Therefore, we affirm the trial court’s order.

Appellate courts will uphold the trial court’s ruling on an application for writ of habeas corpus absent an abuse of discretion. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003). Because the issues presented herein raise questions of law, we review the trial court’s ruling de novo. See id.; see also Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App.1999); State v. Nkwocha, 31 S.W.3d 817, 820 (Tex.App.-Dallas 2000, no pet.).

“The writ of habeas corpus is an extraordinary writ.” Ex parte Weise, 55 S.W.3d 617, 619 (Tex.Crim.App.2001); see also Headrick v. State, 988 S.W.2d 226, 228 (Tex.Crim.App.1999). Neither trial courts nor appellate courts should entertain an application for writ of habeas corpus when there is an adequate remedy by appeal. Ex parte Weise, 55 S.W.3d at 619. In determining whether an issue is cognizable by habeas, we consider a variety .of factors, including whether the alleged defect would bring into question the trial court’s power to proceed. Id. Generally, a pretrial writ of habeas corpus is not appropriate when resolution of the question, even when resolved in favor of the applicant, would not result in immediate release. See Headrick, 988 S.W.2d at 228. But see Ex parte Watkins, 73 S.W.3d 264, 274 — 75 (Tex.Crim.App.), cert. denied, 537 U.S. 948, 123 S.Ct. 413, 154 L.Ed.2d 292 (2002) (pretrial habeas corpus available to address collateral estoppel claim based on double jeopardy even though resolution in favor of applicant would not result in dismissal of charges).

When there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is not generally available before trial to test the sufficiency of the complaint, information, or indictment. Ex parte Weise, 55 S.W.3d at 620; Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App.2001). There are few exceptions to this rule, and they have generally been found only when the complaint is such that it would render the proceedings void. See, e.g., Ex parte Matthews, 873 S.W.2d 40 (Tex.Crim.App.1994) (pretrial habeas appropriate to challenge that face of indictment shows prosecution barred by statute of limitations); Ex parte Boetscher, 812 S.W.2d 600 (Tex.Crim.App.1991) (pretrial habeas available to assert claim statute unconstitutional on its face); Ex parte Mangrum, 564 S.W.2d 751 (Tex.Crim.App. [Panel Op.] 1978) (pretrial habeas permitted to challenge that there is no valid statute under which the prosecution may be brought, rendering the information void); Ex parte Menefee v. State, 561 S.W.2d 822 (Tex.Crim.App.1977) (pretrial habeas appropriate for challenge to trial court’s failure to conduct examining trial after juvenile transferred to district court because it rendered indictment void); Ex parte Trillo, 540 S.W.2d 728 (Tex.Crim.App.1976) (habeas corpus allowed where probationer challenged trial court’s noncompliance with statutory time requirement for conducting hearing on motion to revoke), overruled on other grounds by Aguilar v. State, 621 S.W.2d 781 (Tex.Crim.App.1981); Ex parte Becker, 459 S.W.2d 442 (Tex.Crim.App.1970) (pretrial habeas permitted to raise challenge that composition of grand jury illegal, rendering indictment void).

Appellant asserts that his in pari mate-ria claim is cognizable by pretrial writ of habeas corpus because, if successful, the district court would be divested of jurisdiction over his prosecution. We disagree.

In this case, there is a valid statute under which the aggravated assault prosecution is being brought. Appellant does not raise a challenge that would render his prosecution void. He does not assert the aggravated assault statute is unconstitutional on its face or that the prosecution is barred by the statute of limitations. Nor does appellant contend there was any irregularity in the grand jury proceedings or any other irregularity that would render the indictment void. Rather, appellant is challenging the State’s decision as to which statute it will use to prosecute appellant. Appellant’s in pari materia claim, if successful, will not result in his immediate release. If convicted of aggravated assault, appellant has an adequate remedy on appeal to challenge the denial of his in pari materia claim. See, e.g., Burke v. State, 28 S.W.3d 545 (Tex.Crim.App.2000) (addressing merits of in pari materia claim on appeal following conviction); Segura v. State, 100 S.W.3d 652 (Tex.App.-Dallas 2003, no pet.) (same). But see Ex parte Smith, 849 S.W.2d 832 (Tex.App.-Amarillo 1992, no pet.) (addressing merits of in pari materia claim raised by pretrial writ of habeas corpus but not addressing whether the claim is cognizable).

We hold that appellant’s in pari materia claim is not cognizable by pretrial writ of habeas corpus. Therefore, we affirm the trial court’s order.

      . See Tex. Pen.Code Ann. §§ 22.01, 22.02(a)(1) (Vernon Supp.2004-05).

      . See Tex. Educ.Code Ann. § 37.152 (Vernon 1996).