Gawerc v. Montgomery County

47 S.W.3d 840, 2001 Tex. App. LEXIS 4361, 2001 WL 727098

• Court: Court of Appeals of Texas
• Decided: June 28, 2001
• Docket: 09-00-519 CV
• Status: Published

Opinions

OPINION

BURGESS, Justice.

This appeal arises from an order of the trial court granting summary judgment in favor of Montgomery County, Texas (the County) and against Jim Gawerc. Following a condemnation proceeding in favor of the County, Gawerc filed suit asserting the County unlawfully appropriated personalty from the property and wrongfully withheld sums as an accounting and administrative expense for maintaining an account. The trial court granted summary judgment on both claims and Gawerc appeals.

The first basis for the County’s motion for summary judgment was that the building materials were fixtures and their ownership passed to Montgomery County when title to the real property was awarded to the County in the condemnation proceeding. Similarly, the County’s second ground was that the building materials were improvements and their ownership passed to Montgomery County when title to the real property was awarded to the County. We address these grounds together.

The County’s sole argument in their motion was that because the building materials were purchased by and placed in the building by the previous owner with the intent of completing construction of the building, the materials were fixtures, or in the alternative, improvements. The County relies heavily on the presumption that when an owner places an improvement upon real property, he intends it to become a fixture. See Clark v. Clark, 107 S.W.2d 421, 424 (Tex.Civ.App. — Texarkana 1937, no writ). In citing Clark however, the County fails to note that the “improvement” in question was a house — not the materials for which to build a house. In Melendez v. State, 902 S.W.2d 132, 137 (Tex.App. — Houston [1st Dist.] 1995, no pet.), the court noted, “[generally, whether a particular item is a fixture or personalty is a question of fact, and should be determined by the factfinder.” The court found it a “dispositive fact” that the steel trusses in questions were not affixed to the ground but were only stacked there, unattached to the property, and that while there was ample evidence Melendez intended to erect a building using the trusses, “the simple fact of the matter is that he did not erect a buildipg.” Id. As noted by the court in Reames v. Hawthorne-Seving, Inc., 949 S.W.2d 758, 761 (Tex.App.—Dallas 1997, pet. denied), both an improvement and a fixture require annexation to realty, and until something is annexed to realty, it is neither an improvement nor a fixture.

In their first two grounds, the County makes no assertion the building materials were, in fact, annexed to the realty. They claim only that because the original owner intended to attach the materials to the realty, they were already fixtures, or alternatively, improvements. The County failed to establish as a matter of law that the building materials were in any way attached or annexed to the property. See Melendez, 902 S.W.2d at 137-38. Thus, the trial court could not have summary judgment on either the first or second ground in the County’s motion.

The third ground upon which the County moved for summary judgment was that Gawerc’s claims are barred by the doctrines of res judicata and collateral es-toppel. The County’s argument is based upon the question to the jury asking “[fjrom a preponderance of the evidence what do you find to be the fair market value of the ... land, including all improvements condemned by Montgomery County in this lawsuit.” The County contends Gawerc has been compensated for the value of the property which is the subject of his lawsuit because that property was included in the charge to the jury as “improvements.” The County’s contention is based upon their having established that the property in question constituted an “improvement.” As noted in our discussion above, the County failed to conclusively establish the property’s character as an improvement. Accordingly, the trial court could not have granted summary judgment on that basis.¹

Next, in its fourth ground, the County argued that Gawerc forfeited any right to remove the building materials by not removing them within a reasonable time. We first note “the rule that the law abhors forfeitures.” Fenlon v. Jaffee, 553 S.W.2d 422, 429 (Tex.Civ.App.—Tyler 1977, writ ref d n.r.e.). Also, “[t]hat which constitutes a reasonable time is a question of fact or, at least, a mixed question of law and fact and depends upon the circumstances surrounding the case to which the principle is sought to be applied. What would be a reasonable time in one case might be wholly inadequate to shut off the rights of parties in a different case or under different circumstances.” Lewis v. Clark, 149 S.W.2d 244, 248 (Tex.Civ. App.—San Antonio 1941, no writ)(citing Meers v.Frick-Reid Supply Corp., 127 S.W.2d 493, 497 (Tex.Civ.App.—Amarillo 1939, no writ)).

In support of their argument, the County attached a letter dated June 23, 1997, notifying Gawerc that “Montgomery County will agree to delaying the actual taking of possession until July 1st, to allow for a removal of build-out materials or any other items not affixed to the realty. If additional time is needed, please advise.” Further, the County attached an excerpt from a deposition given by Gawerc. Gawerc was asked, “Prior to September the 7th, 1999, or the date of release, did you remove any items of property from the Atrium Building after the condemnation of June 23rd, 1997?” He replied, “I don’t recollect exactly. I don’t believe so.”

Gawerc incorporated his motion for partial summary judgment into his response to the County’s motion. Attached to Gaw-erc’s motion as summary judgment evidence are excerpts from his deposition and the deposition of Don LaFitte. LaFitte testified the locks at the Atrium Building were changed on or about July 3rd, 1997. In his deposition, Gawerc stated he made several attempts to retrieve his personal property prior to September of 1999 and on more than one occasion had made arrangements with the County to do so, but no one from the County showed up to allow entry.

The County attached no summary judgment evidence that the time allotted from June 23rd to July 1st, (or the 3rd when Gawerc was actually locked out) was a reasonable time under the circumstances. Considering the quantity and bulk of the building materials pictured, we find reasonable minds could differ as to whether the amount of time allotted for Gawerc to exercise his right of removal was reasonable. See Kirby Lumber Co. v. Temple Lumber Co., 125 Tex. 284, 83 S.W.2d 638, 642 (1935). The County’s contentions that Gawerc did not attempt to exercise his right until September 7, 1999, was controverted by Gawerc. Therefore, we find the trial court could not have granted summary judgment on the fourth ground of the County’s motion.

The fifth ground of the County’s motion regards Gawerc’s claim that section 117.054 of the Texas Local Government Code, which the County relied upon to withhold a portion of the interest earned upon the trust fund deposit, is unconstitutional. See Tex Loc. Gov’t Code Ann. § 117.054 (Vernon 1999). As this claim arises from the condemnation proceeding, it should have been raised in an appeal from that judgment. We are without jurisdiction to consider the merits of Gawerc’s claims as it seeks to alter a judgment from which he did not appeal. See Tex.R.App. P. 25.1.

Accordingly, we affirm that part of the trial court’s order granting summary judgment on Gawerc’s cause of action for recovery of the sums withheld by the County as an accounting and administrative expense for maintaining the account. That part of the trial court’s order granting summary judgment on Gawerc’s cause of action for the County’s appropriation of his personalty is reversed and the cause remanded.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

1 . The County also stated, without authority, that Gawerc was required to present these claims at the jury trial. But "[jurisdiction of the trial court in condemnation proceedings is appellate, and although the trial is De novo, it is limited to the issues and the parties involved in the administrative proceeding before the special commissioners, the administrative tribunal from which the court’s jurisdiction derives. Texas Electric Service Co. v. Perkins, 23 S.W.2d 320, 323 (Tex.Com.App. 1930, judgment adopted). The trial court is without power to enlarge the subject matter of the cause and is limited to review of only such matters as were properly before the commissioners. Stinnan v. City of Tyler, 443 S.W.2d 354, 359 (Tex.Civ.App.—Tyler 1969, writ ref. n.r.e.)." The sole issue at the jury trial was the value of the property at the time of the condemnation proceeding and the record is clear that at that time the materials were not improvements.