IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 6, 2001
______________________________
PRINCEWILL A. TATA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 337TH DISTRICT COURT OF HARRIS COUNTY;
NO. 817,719; HONORABLE DON STRICKLIN, JUDGE
_______________________________
Before QUINN and REAVIS and JOHNSON, JJ.
Appellant Princewill A. Tata has given notice of appeal from a conviction and sentence in cause number 817,719 in the 337th District Court of Harris County, Texas (the trial court). The trial court clerk's records were filed with the appellate court clerk on October 24, 2000. The clerk of this court is in receipt of a letter from the trial court reporter which advises that the reporter has not received a deposit toward transcription of the reporter's record on appeal, nor any designation of record on appeal. No reporter's record has been filed.
Pursuant to correspondence from the clerk of this court, counsel for appellant advised that an affidavit of indigency was forwarded to appellant at his place of incarceration, and that upon filing of the properly-executed affidavit, the trial court would appoint counsel to represent appellant on appeal. Subsequent inquiry into the status of the affidavit of indigency and appointment of counsel has not elicited a response from appellant or his counsel.
Accordingly, this appeal is abated and the cause remanded to the trial court. Tex. R. App. P. 37.3(a)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, then whether appellant is indigent, and if not indigent, whether counsel for appellant has abandoned the appeal; (3) if appellant desires to prosecute the appeal, whether appellant's present counsel should be replaced; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute, or, if appellant desires to prosecute, to assure that the appeal will be diligently pursued. If the trial court determines that the present attorney for appellant should be replaced, the court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney.
The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a supplemental clerk's record; (3) cause the hearing proceedings to be transcribed and included in a reporter's record; and (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the reporter's record. In the absence of a request for extension of time from the trial court, the supplemental clerk's record, reporter's record of the hearing and proceedings pursuant to this order, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than April 16, 2001.
Per Curiam
Do not publish.
x.App.--Houston [1st Dist.] 1994. no writ). Considering that Kothmann filed suit on February 8, 2001, but did not file his trial petition until March 23, 2004, we conclude the trial court did not abuse its discretion in denying the motion for continuance. Moreover, the motion was not supported by affidavit as required by Rule 251 of the Texas Rules of Civil Procedure. Kothmann's first issue is overruled.
The claims against the City of Lubbock and Rothwell are not entirely common. As to the City of Lubbock, Kothmann expressly waived his trespass claim but (1) alleged private nuisance, (2) sought a declaration that the City of Lubbock violated section 11.086 of the Texas Water Code and damages therefrom, (4) sought attorney's fees, and (5) a declaration that the City of Lubbock's conduct constituted an unconstitutional taking without compensation in violation of Article 1, Section 17 of the Texas Constitution. Kothmann's claims against Rothwell included (1) trespass, (2) private nuisance, (3) negligence, (4) a declaration that Rothwell violated section 11.086 of the Texas Water Code and damages therefrom, and (5) attorney's fees.
In reviewing a summary judgment, this Court must apply the standards established in Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985). For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either prove all essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential element of the non-movant's cause of action. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ denied). Where, as here, a summary judgment does not specify or state the grounds relied on, the summary judgment will be affirmed on appeal if any of the grounds presented in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Insurance Co. Of N. Am. v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ).
City of Lubbock's Summary JudgmentBy his second issue, Kothmann contends the pleadings are insufficient to support the judgment and by his third issue, contends the granting of summary judgment was error under the record and the law. We disagree.
By its first amended answer, among other things, the City of Lubbock asserted that Kothmann consented to the drainage easements and any burden resulting therefrom. By its motion for summary judgment, among other grounds, the City of Lubbock alleged that Kothmann could not recover under any alleged cause of action because his predecessor in title consented to the drainage easement, and the deed to Kothmann was expressly subject to the drainage easement.
The evidence included a copy of the easement and a copy of the deed to Kothmann. Significant here, portions of the drainage easement document include a recitation that in addition to monetary consideration, consideration also included "benefits accruing and to accrue to the remainder of GRANTORS' property . . . ." Also, the drainage easement expressly recognized that the City of Lubbock reserved the right to act and determine the drainage grade and direction of flow of waters on the real estate. Controlling here, the deed to Kothmann expressly provided:
This conveyance, however, is made and accepted subject to any and all restrictions, encumbrances, easements, covenants and conditions, if any, relating to the hereinabove described property as the same are filed for record in the County Clerk's Office of Lubbock County, Texas.
(Emphasis added). Immediately below the grantor's signature the copy of the deed to Kothmann provides:
AGREED AND ACCEPTED TO:
/s/
KODY KOTHMANN
/s/
JANET KOTHMANN
In addition to being bound to the provisions of the easement by constructive notice as discussed in Williams v. Thompson, 152 Tex. 270, 256 S.W.2d 399, 403 (1953), Kothmann's agreement and acceptance of the deed upon acquisition of the property constitutes his express recognition of the burdens on the property imposed by the drainage easement. The easement gave the City of Lubbock the right to do such things as reasonably necessary for the full enjoyment of the easement, and the extent to which incidental rights may be exercised depends on the object and purpose of the grant and whether such rights are limited by its terms. See Phillips Petroleum Company v. Terrel, 404 S.W.2d 927, 929 (Tex.Civ.App.--Amarillo 1966, no writ).
Next, considering Kothmann's claims of private nuisance and unconstitutional taking and violation of section 11.086 of the Water Code, we note that according to the affidavit of R. Keith Smith, City Engineer, included as summary judgment evidence, the City of Lubbock did not conduct any work on the project by its employees, contractors, or otherwise. The summary judgment evidence also includes a copy of a letter dated January 26, 2001, whereby the City of Lubbock notified Kothmann that Rothwell had contracted with the engineer and the contractor to perform the work. Kothmann did not respond with any summary judgment evidence to the contrary. Kothmann's second and third issues are overruled as to the City of Lubbock.
Rothwell's Summary Judgment Trespass, Negligence, and Nuisance ClaimsBased on Kothmann's pleadings regarding execution and provisions of the drainage easement and his acquisition of the remainder of the property and other summary judgment evidence discussed above, except for Kothmann's claims for trespass, negligence, and nuisance, the above analysis, holding, and disposition of issues two and three are incorporated herein for all purposes.
By his first amended answer, Rothwell presented special exceptions claiming that Kothmann's allegations of trespass, nuisance, and negligence were vague. Although the allegations are vague when taken in the context of the drainage easement, that determination will not support summary judgment because whether pleadings fail to state a cause of action may not be determined by summary judgment. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). A party should be given an opportunity to amend after special exceptions have been sustained. Hartsfield v. Wisdom, 843 S.W.2d 221, 224 (Tex.App.--Amarillo 1992, writ denied). Based on the pleadings, summary judgment was improperly granted on Kothmann's claim for trespass, nuisance, and negligence. To that extent only, issues two and three are sustained as to Rothwell.
Accordingly, the order granting summary judgment in favor of the City of Lubbock as to all claims by Kody Kothmann is affirmed; the order granting summary judgment in favor of Gary Rothwell, individually and d/b/a Rothwell Construction is reversed in part and the cause is remanded for further proceedings on Kody Kothmann's claims of trespass, nuisance, and negligence only; (2) in all other respects, the order is affirmed.
Don H. Reavis
Justice
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
2. Kothmann's issue under § 11.086 of the Water Code being overruled is not remanded for further proceedings.