Linder v. Valero Transmission Co.

736 S.W.2d 803
CourtCourt of Appeals of Texas
DecidedJune 30, 1987
DocketNo. 13-86-147-CV
StatusPublished
Cited by6 cases

This text of 736 S.W.2d 803 (Linder v. Valero Transmission Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Linder v. Valero Transmission Co., 736 S.W.2d 803 (Tex. Ct. App. 1987).

Opinion

OPINION

DORSEY, Justice.

Lillian Linder appeals a judgment of the district court granting Valero Transmission Company an easement of 8.895 acres on her property and awarding her $87,163.50 in damages. Valero raises certain cross-points.

In June 1981, Valero brought suit to condemn a surface easement on an 8.895-acre tract owned by appellant Linder. Special commissioners were appointed and assessed damages of $40,000.00. Linder thereafter filed objections to the commissioners’ award in the district court, alleging that Valero lacked statutory authority, that there was no public use, and that the compensation awarded was inadequate.

After certain discovery had been completed in the district court, Valero filed a motion for partial summary judgment as[805]*805serting that there was no factual controversy concerning Valero’s right to condemn, accompanied by certain evidence. Ms. Linder filed a response, and the partial summary judgment was granted. The jury heard evidence on damages.

In her first point of error, Ms. Linder complains of the granting of the partial summary judgment because there is no statutory authority for Valero to condemn for the operation of an industrial amine treatment plant under Tex.Rev.Civ.Stat. Ann. art. 1436 (Vernon 1980); that there is no evidence in the record to show the necessity for the taking; and there exist factual issues that appellee acted arbitrarily, capriciously, and in bad faith.

When reviewing a summary judgment, we consider the evidence in the light most favorable to the nonmovant and indulge all reasonable inferences in the non-movant’s favor. Wilcox v. St. Mary’s University, 531 S.W.2d 589 (Tex.1975). The movant has the burden to show that there are no issues of material fact and that the movant is entitled to judgment as a matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Issues not expressly presented to the trial court by written motion, answer, or response will not be considered on appeal as grounds for reversal. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). It is not the duty of the trial court or appellate court to determine questions of law or fact which could have been raised by the nonmovant, but were not. Wooldridge v. Groos National Bank, 603 S.W.2d 335, 344, (Tex.Civ.App. — Waco 1980, no writ).

In its motion for summary judgment, Valero asserted that Tex.Rev.Civ.Stat.Ann. art. 1436 (Vernon 1980) is the valid constitutional and statutory authority for the condemnation proceeding, that Valero devotes its private property and resources to public service, that the condemnation suit was duly authorized by its Board of Directors, that the condemnation is for a public purpose, and that it had complied with all procedural requirements.

The motion was accompanied by the affidavit of Richard Wells, vice-president of Valero Transmission, which stated that Va-lero transports and sells gas to individuals, the public, and municipalities for light, heat, power, and other purposes. According to Wells, Valero is authorized to construct, maintain, and operate machinery, pipeline, apparatus, and pipes, etc., which are necessary to operate its pipelines. Va-lero’s Certificate of Incorporation was included as summary judgment evidence. The resolution of the Board of Directors was also part of the summary judgment record. The resolution stated that, by unanimous consent, the Board had concluded on May 29, 1981, that necessity and convenience required the construction and operation on appellant’s tract of an amine treatment plant for the removal of hydrogen sulfide from natural gas, the company is a gas utility, the gas stream purchased from the DeWitt and Lavaca areas contains impurities, the company determined that the safe and efficient removal of hydrogen sulfide could be better accomplished through the use of an amine treatment plant, and authorized the initiation of eminent domain proceedings for the acquisition of appellant’s property.

Appellant’s response to the motion for summary judgment stated that Valero’s fencing of her property amounted to a fee simple taking and that Valero had no legal right to condemn a fee simple estate. Appellant further objected that “this condemnation suit cannot be for public purpose where the plaintiff is proceeding without authority to condemn the estate and lands actually taken by the plaintiff....”

She further objected that the summary judgment proof did not establish all facts necessary to support the legal conclusions and that the description of the tract was fatally vague as a matter of law. The response was accompanied by a transcription of the testimony of Ron Kunkel, engineer for Valero, and appellant’s affidavit which states that a chain link fence surrounding the property excludes her from her property. Kunkel’s deposition and the deposition of Pat Davis, director of engineering services for Valero, were also on [806]*806file before the judge made his ruling on the summary judgment.

Appellant claims on appeal that the summary judgment was improper. First, she contends that the construction of an amine treatment plant is not a purpose or use for which the taking of private property is authorized under Tex.Rev.Civ.Stat.Ann. art. 1436. In essence, she argues that Va-lero has taken private land for private purposes. Second, appellant argues that there is no evidence in the record to show necessity for the taking. Third, she argues that the record is replete with appellant’s affirmative allegations that appellee acted arbitrarily, capriciously, and in bad faith, raising fact issues requiring resolution by the fact finder.

We have carefully reviewed appellant’s response to Valero’s motion for summary judgment, and we cannot find where the defects now urged to the summary judgment were expressly presented to the trial judge in writing in accordance with Tex.R.Civ.P. 166-A. The defects of which she now complains are waived. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 679 (Tex.1979).

The interlocutory summary judgment was granted on December 10,1982. Appellant filed a motion to vacate the partial summary judgment on April 4, 1984, raising issues complained of on appeal. The trial court heard appellant’s motion to vacate the summary judgment in 1984, but left the original summary judgment intact. The clear purpose of Tex.R.Civ.P. 166-A is to make the issues determined in the motion for summary judgment final. City of Houston v. Socony Mobil Oil Co., 421 S.W.2d 427 (Tex.Civ.App. — Houston [1st Dist.] 1967, writ ref’d n.r.e.). The issues decided cannot be further litigated unless the summary judgment is set aside by the trial court, or reversed on appeal. Id. at 430. Because the partial summary judgment was not vacated by the trial court, we look at the propriety of the summary judgment based upon the facts and written responses before the court at the time the judgment was entered.

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