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Click here for the full text of this decision FACTS:In March of 2000, Steve Fisher, managing director of Woodbridge Investment Company, purchased some property on which he wanted to establish a gentleman’s club. Fisher, who had experience with Sexually Oriented Businesses (SOBs), was aware of the importance of finding land that was not within 1,500 feet of any residential use because of the requirements to get a permit for an SOB. An SOB must apply for a permit under Texas and Harris County law. In December 2000, Webworld Marketing Group LLC was formed to lease the land from Fisher and run the SOB. Within 1,500 feet from the proposed SOB, there was a parrot shop owned by Joe Melvin and his wife. The Melvins had purchased this land in 1996 and applied for a permit to build first the shop on the ground level and then a garage apartment upstairs where they would live. They planned to do the construction slowly as funds became available to avoid going into debt. In March 2001, Fisher climbed a ladder in the middle of the day to investigate the Melvins’ upstairs property and took some pictures through the window. He could see all the way to the back wall and noticed that it was largely unfinished and appeared to be storage for the shop downstairs. He acknowledged that there was some sort of construction underway. After his investigation, Fisher called Darla Gideon of Webworld and advised her that there was nothing in the parrot shop and that she should apply for the SOB permit. On March 19, 2001, Webworld filed for the SOB permit and certified that there was no residence within 1500 feet of the SOB site. In accordance with the requirements for an SOB permit, Webworld sent letters to all property owners within the 1,500 foot radius, advising them of its intention to establish the SOB. After receipt of this notice, the Melvins wrote a letter to Sheriff Tommie Thomas explaining that their “residence” was above the parrot shop and within the 1500 foot radius. On May 15, 2001, Webworld received a letter from the sheriff’s office denying its SOB permit on the ground that it violated the relevant Harris County ordinance because 1. the SOB was within 1,500 feet of a dwelling; 2. Webworld had knowingly made a misleading statement by providing an incorrect address of the SOB, and 3. Webworld had knowingly made a misleading statement because the proposed building allegedly did not fit the lot area. On June 19, 2001, Webworld’s attorney correcting the address on the application. Webworld also sent a letter from an engineering firm stating that it had designed the building and the building would fit on the pad site. Webworld never heard back from the sheriff. Webworld sought the trial court’s declaration that Webworld met all required criteria for the issuance of an SOB permit and the trial court’s order requiring the Sheriff to issue the SOB permit to Webworld. The case went to trial, and the jury was asked four questions in the charge, including whether Webworld’s proposed enterprise was located a minimum of 1,500 feet from any residence in existence at that location at least thirty 30 days prior to Webworld’s application dated March 19, 2001. The jury answered yes. In addition, the jury found that Webworld did not knowingly make a misleading statement of material fact by omitting or falsifying information in its application dated March 19, 2001 for a Sexually Oriented Business Permit; the sheriff arbitrarily denied Webworld’s March 19, 2001 application for an SOB permit; and the sheriff did not act in good faith in denying Webworld’s March 19, 2001 application for an SOB permit. After the jury answered all four questions in favor of Webworld, the sheriff filed a motion for judgment notwithstanding the verdict (JNOV) in which he alleged that there was legally insufficient evidence to support the jury’s finding on question number one because there was “no evidence that the planned use of the property was not as a part-time residence.” The sheriff also complained that there was legally insufficient evidence to support the jury’s finding on questions number three and number four because there was no evidence that the Sheriff arbitrarily denied the SOB permit or acted in bad faith “in light of the fact that the Melvins had indicated in 1996 that they would use the property as a residence.” Without stating its reasons, the trial court granted the JNOV motion and denied Webworld’s writ of mandamus against the sheriff. Webworld appealed this order. In its sole point of error, Webworld contended that the trial court erred in granting the sheriff’s JNOV motion, because there was more than a scintilla of evidence to support the jury’s verdict. HOLDING:Reversed and rendered. Considering the testimony from the first witness at trial, who testified that her examination of the area surrounding the proposed SOB found no residences, the court held that there was more than a scintilla of evidence to support the jury’s answer to question number one. The court also found that at all times relevant to the case, the sheriff knew the actual location of the build site. All distance measurements related to Webworld’s SOB permit application, the court stated, were taken from the build site’s correct location. There is no evidence that the incorrect address on Webworld’s SOB permit application misled the sheriff, the court found. In cross-points one and two, the Sheriff contended that there was no evidence to support the submission of jury questions one, three and four and that the trial court erred in failing to grant the sheriff’s request for an instructed verdict, the court stated. Having already determined that more than a scintilla of evidence existed to support the jury’s findings, the court overruled cross-points one and two. In cross-point three, the sheriff asserted that the evidence was factually insufficient to support the jury’s answers to questions one, three and four, the court stated. But the court found that because the record did not reflect that the sheriff filed a motion for new trial and raised a factual sufficiency point in such a motion, the Sheriff failed to preserve any factual sufficiency issues for the court’s review. As a result, the court overruled that cross-point. The court also held that the sheriff failed to show that the trial court abused its discretion in overruling his objection to the charge’s definition of “dwelling.” OPINION:Hanks, J.; Nuchia, Keyes and Hanks, J.J.

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