IN THE TENTH COURT OF APPEALS
No. 10-08-00405-CV
ENBRIDGE PIPELINES (EAST TEXAS) L.P., Appellant v.
CAMP COOLEY, LTD, Appellee
From the 82nd District Court Robertson County, Texas Trial Court No. 06-09-17,595A-CV
MEMORANDUM OPINION
Enbridge Pipelines (East Texas) L.P. appeals the judgment of the trial court that
granted the partial motion for summary judgment filed by Camp Cooley, Ltd. TEX. R.
CIV. P. 166a(c). Enbridge complains that the trial court erred in its determination that
Camp Cooley established as a matter of law that they were not “unable to agree” on the
amount of damages, but in fact had orally agreed as to the amount of damages. The
trial court also denied Enbridge’s traditional and no-evidence motions for summary
judgment, which Enbridge did not appeal. The trial court severed out several
remaining claims, making the judgment entered by the trial court in this cause a final judgment for purposes of appeal. Because we find that the trial court erred in
determining that the oral agreement did not violate the statute of frauds and was
enforceable, and that Enbridge satisfied its burden that the parties are unable to agree
on the amount of damages, we reverse and remand.
Factual Background
In the spring of 2006, Enbridge approached Camp Cooley regarding their desire
to purchase up to three easements across Camp Cooley’s property for the purpose of
laying natural gas pipelines. Representatives from Enbridge met with representatives
from Camp Cooley to discuss the easements on May 22, 2006. The only agreement
made at this meeting was that the price for the easements would be $600.00 per rod for
a permanent easement and $350.00 per rod for a term easement, at Enbridge’s election.
There was no agreement as to the exact location or length of the easements, and it was
disputed as to whether there was an agreement as to the width of the easements. It was
undisputed that there was no written agreement or other memorialization created or
executed at this meeting.
Shortly after the meeting, attorneys from Camp Cooley submitted proposed
easement documents to Enbridge, which were never executed by Enbridge. Enbridge
then submitted written offers to Camp Cooley beginning in July of 2006 setting forth
their proposed offers for three easements, with full legal descriptions of the lands to be
included in the easements, which proposed to pay Camp Cooley far less than the
$600.00 per rod for a permanent easement. Camp Cooley rejected the offer, contending
Enbridge Pipelines (East Texas) LP v. Camp Cooley, Ltd. Page 2 that an agreement had already been reached as to the amount of the damages Enbridge
would pay Camp Cooley for the easements based on the $600.00 per rod figure.
Enbridge then filed its first petition with the trial court, asking for the trial court
to appoint three special commissioners to determine the amount of damages for the
creation of two easements. Camp Cooley filed a petition alleging causes of action for
breach of contract and trespass in a separate cause number. Approximately a month
later, Enbridge filed a second petition in a different cause number regarding a third
condemnation.1 Camp Cooley did not participate in this process, but filed an objection
to the award, which resulted in the proceedings taking place in the trial court. The trial
court consolidated the three causes at Camp Cooley’s request, to which Enbridge
objected.
Condemnation Proceedings
Section 21.02 of the Texas Property Code provides:
(a) If the United States, this state, a political subdivision of this state, a corporation with eminent domain authority, or an irrigation, water improvement, or water power control district created by law wants to acquire real property for public use but is unable to agree with the owner of the property on the amount of damages, the condemning entity may begin a condemnation proceeding by filing a petition in the proper court.
(b) The petition must:
(1) describe the property to be condemned;
(2) state the purpose for which the entity intends to use the property;
(3) state the name of the owner of the property if the owner is known; and
1 There is a dispute between the parties as to whether this easement was encompassed in the prior agreement to pay $600.00 per rod, or whether this request arose after the meeting, and therefore, the $600.00 per rod figure should not apply. Because of our holding regarding the statute of frauds, it is not necessary to reach this issue.
Enbridge Pipelines (East Texas) LP v. Camp Cooley, Ltd. Page 3 (4) state that the entity and the property owner are unable to agree on the damages.
TEX. PROP. CODE ANN. § 21.012 (Vernon 2004) (emphasis added). The condemnation
petitions filed by Enbridge in the trial court contained all of the foregoing
statutory allegations, including a statement that Enbridge and Camp Cooley were
unable to agree on the damages for the easements to be condemned.
Standard of Review
We review the trial court's granting of a motion for summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The movant in a
traditional summary judgment motion must show that there is no genuine issue of
material fact and that they are entitled to judgment as a matter of law. See TEX. R. CIV.
P. 166a(c). When reviewing a summary judgment, we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor. Valence Operating Co., 164 S.W.3d at 661. If the
movant establishes their right to a judgment as a matter of law, the burden then shifts to
the nonmovant to present evidence raising a genuine issue of material fact, which
precludes the granting of a motion for summary judgment. See City of Houston v. Clear
Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). Evidence is conclusive only if
reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168
S.W.3d 802, 816 (Tex. 2005). When the trial court does not specify the grounds upon
which it ruled, the judgment may be affirmed if any ground stated in the motion is
meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
Enbridge Pipelines (East Texas) LP v. Camp Cooley, Ltd. Page 4 Further, “[w]hen both parties move for summary judgment and the trial court
grants one motion and denies the other, the reviewing court should review the
summary judgment evidence presented by both sides and determine all questions
presented and render the judgment the trial court should have rendered.” Canyon Reg'l
Water Auth. v. Guadalupe-Blanco River Auth., 258 S.W.3d 613, 616 (Tex. 2008) (citing Tex.
Workers' Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004)).
Enbridge argues that the statute of frauds mandates that any offers or
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IN THE TENTH COURT OF APPEALS
No. 10-08-00405-CV
ENBRIDGE PIPELINES (EAST TEXAS) L.P., Appellant v.
CAMP COOLEY, LTD, Appellee
From the 82nd District Court Robertson County, Texas Trial Court No. 06-09-17,595A-CV
MEMORANDUM OPINION
Enbridge Pipelines (East Texas) L.P. appeals the judgment of the trial court that
granted the partial motion for summary judgment filed by Camp Cooley, Ltd. TEX. R.
CIV. P. 166a(c). Enbridge complains that the trial court erred in its determination that
Camp Cooley established as a matter of law that they were not “unable to agree” on the
amount of damages, but in fact had orally agreed as to the amount of damages. The
trial court also denied Enbridge’s traditional and no-evidence motions for summary
judgment, which Enbridge did not appeal. The trial court severed out several
remaining claims, making the judgment entered by the trial court in this cause a final judgment for purposes of appeal. Because we find that the trial court erred in
determining that the oral agreement did not violate the statute of frauds and was
enforceable, and that Enbridge satisfied its burden that the parties are unable to agree
on the amount of damages, we reverse and remand.
Factual Background
In the spring of 2006, Enbridge approached Camp Cooley regarding their desire
to purchase up to three easements across Camp Cooley’s property for the purpose of
laying natural gas pipelines. Representatives from Enbridge met with representatives
from Camp Cooley to discuss the easements on May 22, 2006. The only agreement
made at this meeting was that the price for the easements would be $600.00 per rod for
a permanent easement and $350.00 per rod for a term easement, at Enbridge’s election.
There was no agreement as to the exact location or length of the easements, and it was
disputed as to whether there was an agreement as to the width of the easements. It was
undisputed that there was no written agreement or other memorialization created or
executed at this meeting.
Shortly after the meeting, attorneys from Camp Cooley submitted proposed
easement documents to Enbridge, which were never executed by Enbridge. Enbridge
then submitted written offers to Camp Cooley beginning in July of 2006 setting forth
their proposed offers for three easements, with full legal descriptions of the lands to be
included in the easements, which proposed to pay Camp Cooley far less than the
$600.00 per rod for a permanent easement. Camp Cooley rejected the offer, contending
Enbridge Pipelines (East Texas) LP v. Camp Cooley, Ltd. Page 2 that an agreement had already been reached as to the amount of the damages Enbridge
would pay Camp Cooley for the easements based on the $600.00 per rod figure.
Enbridge then filed its first petition with the trial court, asking for the trial court
to appoint three special commissioners to determine the amount of damages for the
creation of two easements. Camp Cooley filed a petition alleging causes of action for
breach of contract and trespass in a separate cause number. Approximately a month
later, Enbridge filed a second petition in a different cause number regarding a third
condemnation.1 Camp Cooley did not participate in this process, but filed an objection
to the award, which resulted in the proceedings taking place in the trial court. The trial
court consolidated the three causes at Camp Cooley’s request, to which Enbridge
objected.
Condemnation Proceedings
Section 21.02 of the Texas Property Code provides:
(a) If the United States, this state, a political subdivision of this state, a corporation with eminent domain authority, or an irrigation, water improvement, or water power control district created by law wants to acquire real property for public use but is unable to agree with the owner of the property on the amount of damages, the condemning entity may begin a condemnation proceeding by filing a petition in the proper court.
(b) The petition must:
(1) describe the property to be condemned;
(2) state the purpose for which the entity intends to use the property;
(3) state the name of the owner of the property if the owner is known; and
1 There is a dispute between the parties as to whether this easement was encompassed in the prior agreement to pay $600.00 per rod, or whether this request arose after the meeting, and therefore, the $600.00 per rod figure should not apply. Because of our holding regarding the statute of frauds, it is not necessary to reach this issue.
Enbridge Pipelines (East Texas) LP v. Camp Cooley, Ltd. Page 3 (4) state that the entity and the property owner are unable to agree on the damages.
TEX. PROP. CODE ANN. § 21.012 (Vernon 2004) (emphasis added). The condemnation
petitions filed by Enbridge in the trial court contained all of the foregoing
statutory allegations, including a statement that Enbridge and Camp Cooley were
unable to agree on the damages for the easements to be condemned.
Standard of Review
We review the trial court's granting of a motion for summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The movant in a
traditional summary judgment motion must show that there is no genuine issue of
material fact and that they are entitled to judgment as a matter of law. See TEX. R. CIV.
P. 166a(c). When reviewing a summary judgment, we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor. Valence Operating Co., 164 S.W.3d at 661. If the
movant establishes their right to a judgment as a matter of law, the burden then shifts to
the nonmovant to present evidence raising a genuine issue of material fact, which
precludes the granting of a motion for summary judgment. See City of Houston v. Clear
Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). Evidence is conclusive only if
reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168
S.W.3d 802, 816 (Tex. 2005). When the trial court does not specify the grounds upon
which it ruled, the judgment may be affirmed if any ground stated in the motion is
meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
Enbridge Pipelines (East Texas) LP v. Camp Cooley, Ltd. Page 4 Further, “[w]hen both parties move for summary judgment and the trial court
grants one motion and denies the other, the reviewing court should review the
summary judgment evidence presented by both sides and determine all questions
presented and render the judgment the trial court should have rendered.” Canyon Reg'l
Water Auth. v. Guadalupe-Blanco River Auth., 258 S.W.3d 613, 616 (Tex. 2008) (citing Tex.
Workers' Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004)).
Enbridge argues that the statute of frauds mandates that any offers or
agreements for the terms of the easement be in writing in order to be enforceable. See
TEX. BUS. & COMM. CODE ANN. § 26.01 (Vernon 2009). Enbridge also contends that
regardless of whether a specific amount was orally agreed upon by the parties, there
were additional terms and conditions that were not included in the exchange, and
therefore, any agreement was merely an “agreement to agree,” but was not an
enforceable contract. Camp Cooley contends that the statute of frauds does not apply to
this situation and that the only thing to be agreed upon was the amount of damages. It
is undisputed that there is no written agreement regarding the amount of damages to
be paid. It is also undisputed that the amount allegedly agreed upon was $600.00 per
rod for a permanent easement or $350.00 per rod for a term easement.2
Statute of Frauds
Section 26.01 of the Texas Business and Commerce Code states in relevant part as
follows:
2 A rod is a linear measure equal to 5.5 yards or 16.5 feet (5.03 meters).
Enbridge Pipelines (East Texas) LP v. Camp Cooley, Ltd. Page 5 A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
(b) Subsection (a) of this section applies to:
...
(4) a contract for the sale of real estate . . . .
TEX. BUS. & COM. CODE ANN. § 26.01. An easement is an express interest in land that is
subject to the statute of frauds. Pick v. Bartel, 659 S.W.2d 636, 27 Tex. Sup. Ct. J. 73 (Tex.
1983). Whether a contract for an easement meets the requirements of the statute of
frauds is a question of law. Bratcher v. Dozier, 162 Tex. 319, 346 S.W.2d 795, 796 (Tex.
1961); West Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 264 (Tex. App.—Austin 2002, no
pet.).
The issue, then, is whether an agreement as to the amount of damages to be paid
in a condemnation stands alone or must be considered in totality with the entire
easement to be created, which is the basis of the condemnation. It is undisputed that
the precise location for the placement of the easements was not agreed to in the meeting
on May 22, 2006, when the agreement on the price per rod at issue here was reached.
We believe that the entire easement must be considered in order to determine whether
or not the agreement had to be in writing to be enforceable. Down to the most basic
level, the transaction at stake in this matter involved the exchange of an interest in real
property for compensation or damages. Therefore, the statute of frauds applies as the
Enbridge Pipelines (East Texas) LP v. Camp Cooley, Ltd. Page 6 basis of the transaction is the sale of real estate. The lack of a written agreement does
not satisfy the statute of frauds, and therefore, is not an enforceable agreement. The
trial court erred in granting Camp Cooley’s motion for partial summary judgment
based on the oral agreement. We further find that the judgment the trial court should
have rendered was to find that the oral agreement to pay $600.00 per rod violated the
statute of frauds, and that Enbridge has satisfied its burden that the parties were unable
to agree on the amount of damages to be paid. The trial court should have granted
Enbridge’s motion for summary judgment on that issue. This leaves a fact question to
be determined as to the appropriate amount of damages to be paid by Enbridge. We
sustain Enbridge’s sole issue.
Conclusion
We find that the oral agreement as to the amount of damages to be paid by
Enbridge to acquire the easements violates the statute of frauds and is unenforceable.
We find that the trial court erred in its determination that there was an enforceable
agreement to pay $600.00 per rod based on the oral agreement. We find that Enbridge
satisfied its burden that the parties were unable to agree on the amount of damages to
be paid, and therefore, there is a fact issue to be determined regarding the amount of
damages. We reverse the judgment of the trial court and remand for further
proceedings.
TOM GRAY Chief Justice
Enbridge Pipelines (East Texas) LP v. Camp Cooley, Ltd. Page 7 Before Chief Justice Gray, Justice Reyna, and Justice Davis (Justice Davis concurs as to the judgment only) Reversed and remanded Opinion delivered and filed January 20, 2010 [CV06]
Enbridge Pipelines (East Texas) LP v. Camp Cooley, Ltd. Page 8