Justin a Jinright v. North Texas Municipal Water District

• Court: Court of Appeals of Texas
• Decided: June 27, 2022
• Docket: 05-21-00027-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed June 27, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00027-CV

JUSTIN A. JINRIGHT, Appellant V. NORTH TEXAS MUNICIPAL WATER DISTRICT, Appellee

On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-02373-2016

MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Goldstein Opinion by Justice Reichek In this appeal from a summary judgment, Justin A. Jinright contends the trial

court erred in sustaining the North Texas Municipal Water District’s (the

“District’s”) objections to his summary judgment evidence and granting the

District’s motion for traditional and no-evidence summary judgment. For the

reasons set forth below, we affirm the trial court’s judgment.

Background

This case arises out of an easement granted to the District in 2013 by three

property owners, including Jinright, for the purpose of constructing an underground

water pipeline. In 2016, the landowners filed suit alleging the District had violated the terms of the easement and damaged their property. The landowners asserted

claims for breach of contract, inverse condemnation, trespass, unjust enrichment,

reformation of instrument, and mandamus relief.

The District filed a plea to the jurisdiction arguing the landowners failed to

allege any basis on which the District’s governmental immunity had been waived.

Following a hearing, the trial court granted the District’s plea with respect to the

landowner’s claims for trespass, unjust enrichment, and mandamus relief, but denied

the plea as to the remaining causes of action.

The District then brought an interlocutory appeal challenging the trial court’s

denial of its plea to the jurisdiction as to the landowners’ claims for breach of

contract, inverse condemnation, and reformation of instrument. This Court

concluded the trial erred in denying the District’s plea with respect to the breach of

contract and reformation causes of action and we rendered judgment dismissing

those claims. See N. Tex. Mun. Water Dist. v. Jinright, No. 05-18-00152-CV, 2018

WL 6187632, at *8 (Tex. App.—Dallas Nov. 27, 2018, pet. denied) (mem. op.). We

further concluded the trial court erred in denying the District’s plea regarding the

inverse condemnation cause of action to the extent that claim was based on the

District’s alleged taking of trees. Id. Accordingly, we also rendered judgment

dismissing that portion of the inverse condemnation claim. Id. As to the remaining

allegations made in support of the inverse condemnation claim, we concluded the

trial court had jurisdiction to determine whether the District’s purported failure to

–2– comply with the terms of the easement constituted a “taking” for which the

landowners were entitled to compensation. Id. at *7.

On remand, the landowners other than Jinright were dismissed from the suit

for want of prosecution. The sole claim remaining in the suit, therefore, was

Jinright’s claim for inverse condemnation to the extent it was based on allegations

other than the District’s removal of trees. Jinright did not amend his petition after

the case was remanded to the trial court, leaving his non-tree related allegations the

same as addressed in our previous opinion: (1) failure to repair or replace fencing

removed while working on the property; (2) failure to return the native topsoil

removed from the easement, thereby damaging the property by altering its gradation;

(3) storing equipment off easement; and (4) using a temporary road through the

property as a main thoroughfare to an adjacent construction site. Id.

The District filed a combined no-evidence and traditional motion for summary

judgment, arguing it was entitled to judgment as a matter of law on Jinright’s inverse

condemnation claim because Jinright could not show there had been a “taking” of

his property. In the no-evidence portion of the motion, the District asserted Jinright

had no evidence there had been a taking outside of what was granted to the District

in the easement. More specifically, the District asserted:

A. Jinright has no evidence that the soil and grading on the subject property was not restored in accordance with the Easement;

B. Jinright has no evidence that the District caused damage as a result of any alleged soil/grading issues on the subject property;

–3– C. Jinright has no evidence that the District caused damage to the fencing on the subject property;

D. Jinright has no evidence that the District stored equipment outside of the Easement;

E. Jinright has no evidence that the District improperly used a temporary road as a main thoroughfare to other portions of the pipeline.

The District additionally contended Jinright had no evidence of any damages

resulting from the alleged actions listed above.

In its motion for traditional summary judgment, the District contended its

summary judgment evidence conclusively established it had restored Jinright’s

property in accordance with the easement’s terms and, therefore, there had been no

“taking.” The District further asserted it was entitled to summary judgment because

Jinright failed to mitigate his damages regarding soil restoration and re-seeding. In

discussing its mitigation defense and the doctrine of avoidable consequences, the

District stated that, while it “maintains that it has done all that was required under

the Easement to restore the surface and property as close as reasonably possible to

substantially the same condition it was prior to construction of the pipeline, it

concedes that it has not re-seeded the Easement area.” The District went on to say

that its failure to re-seed was only because Jinright had “repeatedly refused to allow

the District and its contractor, S.J. Louis, access to do so.” The District cited to

affidavits and copies of communications with Jinright that it submitted as summary

judgment evidence in support of its argument.

–4– In response to the District’s motion for summary judgment, Jinright argued

the District’s no-evidence motion was “conclusory” and did not sufficiently

challenge specific elements of his claim. He then listed eighteen exhibits he

submitted as summary judgment evidence and summarily stated the court should

deny the District’s no-evidence motion because the exhibits raised a genuine issue

of material fact on the “facts and elements” challenged by the District. Jinright did

not specify what portions of the six-hundred pages of evidence he submitted were

relevant to the District’s challenges or how any of the evidence raised a fact issue.

With respect to the traditional motion, Jinright argued the District failed to

meet its burden to show there had been no “taking” as a matter of law. Jinright listed

various issues of fact he contended still existed, but did not address the District’s

summary judgment evidence. Jinright also did not reference his own summary

judgment evidence other than exhibit “A,” his affidavit, and exhibit “M,” a letter

from the Texas Commission on Environmental Quality (“TCEQ”).

Jinright filed his summary judgment response electronically shortly before

midnight seven days before the summary judgment hearing. Because of the size of

the electronic files, the last four exhibits – O, P, Q, and R – were not filed until after

midnight. Jinright filed a motion the next day requesting leave to file those four

exhibits late.

On the morning of the hearing, the District filed extensive objections to all but

one of the exhibits submitted by Jinright as summary judgment evidence. The only

–5– exhibit to which the District did not object was exhibit “L,” a certified copy of the

easement at issue. Among the objections lodged by the District was that Jinright

failed to reference most of the exhibits in his response to the summary judgment

motion or identify the portions of the exhibits he wanted the court to consider as

raising a fact issue. With respect to Jinright’s affidavit, the District raised multiple

additional objections including that certain statements made in the affidavit were

irrelevant, and others were conclusory. With respect to the TCEQ letter, the District

objected that the letter was hearsay, irrelevant, contained conclusory statements, was

not produced in discovery, and its purported author was not designated as either a

person with knowledge of relevant facts or a testifying expert.

One week later, the trial court signed an order sustaining all of the District’s

objections to Jinright’s summary judgment evidence and struck the evidence in its

entirety. The trial court then granted the District’s traditional and no-evidence

motions for summary judgment and dismissed the case. This appeal followed.

Analysis

We review a trial court’s granting of a summary judgment motion de novo.

Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). Where, as here, the trial court

grants a summary judgment on traditional and no-evidence grounds, we generally

review the no-evidence motion first. B.C. v. Steak N Shake Operations, No. 05-14-

00649-CV, 2020 WL 4435305, at *3 (Tex. App.—Dallas Aug. 3, 2020, no pet.)

I. Specificity of No-Evidence Motion

–6– Jinright contends the trial court erred in granting the District’s no-evidence

motion for summary judgment because the motion was conclusory. “A no-evidence

motion that only generally challenges the sufficiency of the non-movant’s case and

fails to state the specific elements that the movant contends lack supporting evidence

is fundamentally defective and cannot support summary judgment as a matter of

law.” Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280, 283 (Tex. App.—Dallas

2013, pet. denied) (en banc). A no-evidence motion may be directed at specific

factual theories or allegations. Id. But the challenge to a factual allegation must be

connected to a no-evidence challenge to a specific element of a claim or defense. Id.

In this case, the District’s motion for no-evidence summary judgment

specifically targeted the “taking” element of Jinright’s claim for inverse

condemnation. See Jinright, 2018 WL 6187632, at *5 (to establish inverse

condemnation claim, landowner must prove (1) the State intentionally performed

certain acts, (2) that resulted in a “taking” of property, (3) for public use). The

District then challenged each of the factual theories alleged by Jinright to support

his assertion that a taking had occurred. We conclude the District’s motion

sufficiently met the requirements for a no-evidence summary judgment. See Horton

v. Stovall, No. 05-16-00744-CV, 2020 WL 7640042, at *16 (Tex. App.—Dallas

Dec. 23, 2020, no pet.) (mem. op.).

II. Striking of Summary Judgment Evidence

–7– Jinright also contends the trial court erred in granting the District’s objections

and striking his summary judgment evidence. We review the exclusion of summary

judgment evidence for an abuse of discretion. Gunville v. Gonzales, 508 S.W.3d

547, 556 (Tex. App.—El Paso 2016, no pet.). To obtain reversal on the trial court’s

exclusion of summary judgment evidence, an appellant must establish both that the

trial court abused its discretion and that the error was harmful such that it was

calculated to cause, and probably did cause, the rendition of an improper judgment.

Id. To meet the burden to establish harm, Jinright was required to show the excluded

evidence was controlling on a material issue dispositive of the case, was not

cumulative, and its absence resulted in an improper judgment. Id.

Jinright argues the trial court erred in failing to consider his motion for leave

to file late summary judgment exhibits before ruling on the District’s objections to

his summary judgment evidence. Jinright’s motion for leave pertained to only four

exhibits, however, and none of them were referenced in his response to the District’s

motion for summary judgment. Jinright failed to show in the trial court, and fails to

explain on appeal, how those exhibits were controlling, or even relevant, to a

material issue in the case.

Similarly, Jinright fails to show how the exclusion of any of the other exhibits

resulted in the rendition of an improper judgment. Although Jinright broadly argues

the District’s relevancy and hearsay objections were not well taken and lacked

specificity, he does not address any of the exhibits specifically or the objections

–8– made to them. See Barnett v. Veritas DGC Land Inc., No. 14-05-01074-CV, 2006

WL 2827379, at *3 (Tex. App.—Houston [14th Dist.] Oct. 5, 2006, pet. denied)

(global reference to all material submitted as summary judgment evidence fails to

provide coherent argument). The only two exhibits Jinright referred to in his

response to the motion for summary judgment were his affidavit and a letter from

the TCEQ. As to those exhibits, the District objected not only on the grounds of

relevancy and hearsay, but also on the basis that statements in the exhibits were

conclusory and neither the letter nor its author were disclosed in discovery. Jinright

does not address these objections in his appeal. Nor does he explain how those two

exhibits, or any of his other exhibits, raised a genuine issue of material fact sufficient

to defeat summary judgment. We conclude Jinright has not shown the trial abused

its discretion or any harm resulting from the exclusion of his evidence. Id.; see also

Spa Castle, Inc. v. Miura N. Am., Inc., No. 02-16-00024-CV, 2017 WL 817149, at

*2 (Tex. App.—Fort Worth Mar. 4, 2017, no pet.) (mem. op.).

III. Propriety of the Summary Judgment

In its order granting summary judgment, the trial court stated it was granting

the District’s combined traditional and no-evidence motion for summary judgment

in its entirety. When the trial court’s order granting summary judgment does not

specify the grounds relied upon, we must affirm if any of the summary judgment

grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,

872 (Tex. 2000).

–9– “When a motion is presented under rule 166a(i) asserting there is no evidence

of one or more essential elements of the nonmovant’s claims upon which the

nonmovant would have had the burden of proof at trial, the burden is on the

nonmovant to present enough evidence raising a genuine fact issue entitling the

nonmovant to trial.” Bill Jackson Assocs., Inc. v. Century Furniture Indus., Inc., No.

05-00-01424-CV, 2001 WL 1427905, at *3 (Tex. App.—Dallas Nov. 15, 2001, no

pet.) (mem. op., not designated for publication). Because we have concluded

Jinright has not shown that the trial court erred in striking his evidence, there is no

responsive evidence for this court to review. See id.; see also McCollum v. The Bank

of New York Mellon Tr. Co., 481 S.W.3d 352, 362 (Tex. App.—El Paso 2015, no

pet.) (trial court required to grant no-evidence summary judgment after all

responsive evidence struck).

Jinright argues that, even without his evidence, the trial court erred in granting

summary judgment because the District admitted in its motion that it had not re-

seeded the easement area. Assuming without deciding the District’s failure to re-

seed the area alone could give rise to a valid “taking” claim, Jinright’s argument is

without merit.

As the District explained in its motion, and proved with summary judgment

evidence, the only reason it did not re-seed the easement property was that Jinright

prevented it from doing so on multiple occasions. A plaintiff cannot recover

damages that do not proximately result from the defendant’s breach of duty “and

–10– thus damages that might be avoided or mitigated are not recoverable.” Pulaski Bank

& Tr. Co. v. Tex. Am. Bank/Forth Worth, N.A., 759 S.W.2d 723, 735 (Tex. App.—

Dallas 1988, writ denied). The District’s summary judgment evidence was sufficient

to show that any and all damages associated with its alleged failure to re-seed the

easement were avoidable and, therefore, not recoverable by Jinright. See id.; cf.

Kopplow Dev., Inc. v. City of San Antonio, 399 S.W.3d 532, 539 (Tex. 2013)

(“owners of inversely condemned property cannot recover damages the government

did not cause”).

Finally, Jinright argues the District’s no-evidence motion should have been

denied because the District “failed to challenge all possible theories of liability

which would sustain a “taking” claim.” Jinright does not identify, however, any

theories of liability, other than those challenged by the District, that he asserted to

support his “taking” claim. In his response to the District’s motion for summary

judgment, Jinright referred to this Court’s prior opinion as outlining the “takings” at

issue. These are the same “takings” challenged by the District in its motion. The

District was under no obligation to challenge a theory of liability that was not

asserted.

Based on the forgoing, we conclude the trial court properly granted summary

judgment in favor of the District.

–11– We affirm the trial court’s judgment.

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE

210027F.P05

–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JUSTIN A JINRIGHT, Appellant On Appeal from the 429th Judicial District Court, Collin County, Texas No. 05-21-00027-CV V. Trial Court Cause No. 429-02373- 2016. NORTH TEXAS MUNICIPAL Opinion delivered by Justice WATER DISTRICT, Appellee Reichek. Justices Partida-Kipness and Goldstein participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee NORTH TEXAS MUNICIPAL WATER DISTRICT recover its costs of this appeal from appellant JUSTIN A JINRIGHT.

Judgment entered June 27, 2022

–13–