Waddy v. City of Houston

834 S.W.2d 97, 1992 Tex. App. LEXIS 1777, 1992 WL 148289

• Court: Court of Appeals of Texas
• Decided: July 2, 1992
• Docket: 01-90-00738-CV
• Status: Published

Opinions

OPINION

MIRABAL, Justice.

This is an appeal from a summary judgment. We affirm.

Appellant Gordon M. Waddy (Waddy) sued the City of Houston (the City) seeking injunctive and monetary relief. Waddy’s claim arose from his discovery of a city sewer line that crossed his property at 2709 Truxillo in Houston, Texas.

The City filed a motion for summary judgment asserting six grounds for relief. On the day of the hearing, Waddy filed an untimely response to the motion for summary judgment. The trial court granted the City’s motion for summary judgment, without specifying the ground on which the trial court relied.

Waddy’s petition, filed August 28, 1989, alleged:

1) Waddy purchased the subject property on October 5, 1979, has paid taxes on the property, and has been treated by all involved as the owner of the property.

2) The City denied him a building permit because a 42" sewer line operated by the City for over 50 years runs diagonally across the property. The City has never secured legal right or authority to operate on the property, nor had there ever been a dedication of the property to public use.

3) The City has never paid Waddy for the use of his property to operate the sewer line.

4) The operation of the sewer line without legal authority to do so is a trespass.

5) The denial of the building permit unlawfully deprived Waddy of the use, benefit, and enjoyment of his land.

6) The City knew it lacked authority to operate the sewer line, but intentionally misled Waddy and misrepresented the facts by saying Waddy had to pay to re-route the sewer line to get a building permit.

7) Waddy gave notice of the situation to the City by letters dated May 26, 1986, February 18,1988, and March 15,1988.

8) Waddy, at the time he purchased the land, had no knowledge of the sewer line. He hired an attorney when the City refused the building permit and took the position Waddy had the obligation to re-route the sewer line if he wanted a building permit.

9) While deprived of his property without due process, Waddy has paid taxes and maintained the property.

10) Waddy requested an injunction requiring the City to remove the sewer line from his property, or, if the City exercised its right of eminent domain, that he be compensated for the taking of his property.

11) Waddy additionally requested damages of:

a) compensation for the time the city has illegally used his property, from October 1979 to the date of removal of the sewer line, or until he is compensated for the land taken for public use;

b) compensation for the taxes paid and maintenance done on the property;

c) damages for trespass;

d) damages for fraudulent and intentional misrepresentations;

e) reasonable attorney’s fees incurred as a result of the misrepresentations by the City; and

f) attorney’s fees for bringing the action.

Waddy’s petition can be construed to allege a cause of action for trespass, a suit for injunctive restraint of a trespasser to force the City to remove the sewer line, and a suit for inverse condemnation. Wad-dy’s causes of action are all grounded on his claim the City lacks authority to operate the sewer line on his property.

The City’s answer alleged negligence on Waddy’s part, lack of required notice, a statute of limitations bar, governmental immunity, and other defenses.

As grounds for its motion for summary judgment, the City asserted the following:

1) the statutes of limitations barred Waddy’s action;

2) the Texas statute of repose, Tex.Civ. PRAC. & Rem.Code Ann. § 16.009 (Vernon 1986), barred Waddy’s action;

3) an easement by adverse possession existed;

4) Waddy lacked standing to sue because the City had no record of any permit application;

5) immunity existed under the Texas Tort Claims Act because of the discretionary nature of issuing building permits; and

6) the developer who plotted the land in 1926 failed to record the easement, and is the proper defendant, along with Waddy’s title company, not the City.

In his sole point of error, Waddy asserts the trial court erred because the City’s asserted grounds for summary judgment are insufficient to support a summary judgment, as a matter of law.

The standard for appellate review of a summary judgment for a defendant is whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact about one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The movant has the burden to show that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Evidence favorable to the non-mov-ant will be taken as true in deciding whether there is a disputed material fact issue that precludes summary judgment. Id. Every reasonable inference must be indulged in favor of the non-movant and any doubt resolved in its favor. Id.; Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). A summary judgment for the defendant, disposing of the entire case, is proper only if, as a matter of law, the plaintiff could not succeed upon any theories pleaded. Dodson v. Rung, 717 S.W.2d 385, 390 (Tex.App.—Houston [14th Dist.] 1986, no writ). Once the defendant produces sufficient evidence to establish the right to a summary judgment, the plaintiff must set forth sufficient evidence to give rise to a fact issue to avoid a summary judgment. “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-37 (Tex.1972).

If a defendant moves for summary judgment based on an affirmative defense, the defendant’s burden is to prove conclusively all the elements of the affirmative defense as a matter of law. Montgomery, 669 S.W.2d at 310-11. Unless the movant conclusively establishes the affirmative defense, the non-movant plaintiff has no burden in response to a motion for summary judgment filed on the basis of an affirmative defense. Torres v. Western Casualty & Sur. Co., 457 S.W.2d 50, 52 (Tex.1970).

A summary judgment cannot be affirmed on any grounds not presented in the motion for summary judgment. Hall v. Harris County Water Control and Improvement Dist. No. 50, 683 S.W.2d 863, 867 (Tex.App.—Houston [14th Dist.] 1984, no writ). When a trial court’s order does not specify the grounds relied on for its ruling, the summary judgment will be affirmed if any of the theories advanced are meritorious. Insurance Co. of N. Am. v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex.App.—Houston [1st Dist.] 1990, no writ).

This Court may only consider the evidence on file before the trial court at the time of the hearing. Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex.App.—Corpus Christi 1988, no writ). Absent a response by the non-movant, only the legal sufficiency of the movant’s evidence may be challenged on appeal. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

Waddy filed a late response to the City’s motion for summary judgment, and there is nothing in the record to indicate the trial court granted leave to file it. This situation gives rise to the presumption that the trial court did not consider the response, and the appellate court, therefore, cannot consider the response. Goswami v. Metropolitan Sav. and Loan, 751 S.W.2d 487, 490-91 n. 1 (Tex.1988); INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex.1985).

Waddy’s point of error asserts that the “grounds stated by the City ... are insufficient as a matter of law to support summary judgment.” Waddy complains (1) the essential elements are not identified for each of the City’s grounds for summary judgment; (2) the summary judgment evidence is presented in a random manner without specifically relating it to the grounds asserted for summary judgment; and (3) the City does not conclusively prove all elements of its six grounds for summary judgment.

Waddy’s first two complaints are directed to the form of the motion for summary judgment and supporting evidence. Waddy, however, failed to point out the alleged defects in form of the summary judgment evidence by objection in the trial court. As a result, he waived that complaint. Tex.R.Civ.P. 166a(c), (f). Further, it is not required that all the elements of each ground for summary judgment be specifically identified in the motion. Tex. R.Civ.P. 166a(c).

In light of Waddy’s failure to timely respond to the motion for summary judgment, he is restricted on appeal in this case to a review of the sufficiency of the evidence. State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex.1986); Clear Creek Basin Auth., 589 S.W.2d at 678. Because the trial court’s order does not specify the grounds relied on for the ruling, if the summary judgment evidence entitles the City to a summary judgment on any one of the grounds asserted, we must affirm. Law v. Law, 792 S.W.2d 150, 151 (Tex.App.—Houston [1st Dist.] 1990, writ denied); Insurance Co. of N. Am., 790 S.W.2d at 410.

The summary judgment evidence presented by the City included Waddy’s responses to requests for production and interrogatories stating: the sewer line had been installed in 1919, over 70 years ago; the subdivision was originally platted in 1926; the City of Houston Public Works Department maintains sewer maps showing the involved property and the sewer line running across it; Waddy, owner of the property since October 5, 1979, discovered the presence of the sewer line on August 19, 1981; he applied for a building permit that was denied in 1985; and he filed suit on August 28, 1989.

The City’s first ground for summary judgment was that Waddy’s claims were time-barred by the applicable statutes of limitations. We note that the City, in its amended answer, affirmatively plead a particular two-year statute of limitations as a bar, and did not affirmatively plead any other statute of limitations. In its motion for summary judgment, however, the City asserted that Waddy’s claims were barred by “all applicable statutes of limitations.” Because Waddy did not direct the trial court’s attention to the absence of a pleading by the City of any statute of limitations other than the specific two year statute, any pleading defect in that regard was waived. Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492, 495 (Tex.1991).

The statute of limitations for trespass to real property is two years from the date the cause of action accrues. Tex.Civ.Prac. & Rem.Code Ann. § 16.003 (Vernon 1986). An action for trespass by permanent damage to land accrues, for limitations purposes, upon discovery of the first actionable injury. Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex.1984). Even assuming, for the sake of argument, the relevant date of discovery in this case is the date Waddy discovered the existence of the sewer line, his cause of action for trespass is barred. It is undisputed Waddy discovered the sewer line on August 19, 1981, and his building permit was denied in 1985, yet he did not file suit until August 28, 1989, after the statute of limitations had run.

Waddy also asserts a cause of action based on the theory of inverse condemnation. A governmental entity may take property from a private owner for public use, without the consent of the owner, upon the payment of just compensation, through the process of condemnation. Hubler v. City of Corpus Christi, 564 S.W.2d 816, 820 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n.r.e.). Inverse condemnation occurs when property is taken for public use without process or without proper condemnation proceedings, and the proper ty owner attempts to recover compensation therefor. Allen v. City of Texas City, 775 S.W.2d 863, 864 (Tex.App.—Houston [1st Dist.] 1989, writ denied). To recover under the theory of inverse condemnation, the property owner must establish that: 1) the governmental entity intentionally performed certain acts; 2) that resulted in a taking of property; 3) for public use. City of Abilene v. Smithwick, 721 S.W.2d 949, 951 (Tex.App.—Eastland 1986, writ ref’d n.r.e.). Whether a “taking” has occurred is a question of law. Dupuy v. City of Waco, 396 S.W.2d 103, 110 (Tex.1965). Access to the property must be materially and substantially impaired. City of Waco v. Texland Corp., 446 S.W.2d 1, 2 (Tex.1969).

Where property has been “taken,” a plaintiff’s right to maintain a cause of action would not be barred until the expiration of the 10-year period necessary to acquire land by adverse possession. Hudson v. Arkansas Louisiana Gas Co., 626 S.W.2d 561, 563 (Tex.App.—Texarkana 1981, writ ref’d n.r.e.); Hubler, 564 S.W.2d at 823. Where property has been “damaged,” the cause of action is governed by the two-year statute of limitation. Hues v. Warren Petroleum Co., 814 S.W.2d 526, 530 (Tex.App.—Houston [14th Dist.] 1991, writ denied); Hudson, 626 S.W.2d at 563-64; Hubler, 564 S.W.2d at 823.

The cause of action against one who enters upon land under an adverse claim accrues, and the limitations period begins to run, when the entry upon the land is made. Hickman v. Ferguson, 164 S.W. 1085, 1087 (Tex.Civ.App.—Austin 1914, writ ref’d). Once the statute of limitations begins to run, it will not be interrupted in behalf of a subsequent purchaser objecting to its operation for want of notice. Eastham v. Gibbs, 58 Tex.Civ.App. 627, 125 S.W. 372, 374 (Fort Worth 1910, no writ).

The City had the burden to prove when the cause of action for inverse condemnation accrued. Intermedics, Inc. v. Grady, 683 S.W.2d 842, 845 (Tex.App.—Houston [1st Dist.] 1984, writ ref'd n.r.e.) The City’s summary judgment evidence established that in 1919, a 42-inch pipe (3½ feet wide) was installed across the property. Waddy did not assert in any pleading properly before the trial court that his predecessors in title did not have notice of the “taking” of the land for sewer line purposes.

We hold the City produced sufficient evidence to establish the date of “taking” as the date Waddy’s cause of action for inverse condemnation accrued. The burden then became Waddy’s to set forth sufficient evidence to give rise to a fact issue to avoid a summary judgment. “Moore” Burger, Inc., 492 S.W.2d at 936-37. Wad-dy did not file a timely response to the motion for summary judgment, and thus failed to meet his burden.

We respectfully disagree with the dissent’s analysis of Hudson, 626 S.W.2d 561. The Hudson court did no more, in our opinion, than reverse and remand the case because the order granting summary judgment was based on the two-year statute of limitations and the trial court did not even consider the ten-year statute of limitations applicable to inverse condemnation causes of action. The Hudson court did not, and could not properly, rule on the merits of the ten-year statute of limitations defense, because the trial court did not grant summary judgment on that ground. See Insurance Co. of N. Am., 790 S.W.2d at 410.

Because the summary judgment evidence establishes that Waddy’s claims against the City are time-barred by the applicable statutes of limitations, we hold the trial court properly granted summary judgment in favor of the City. We overrule Waddy’s sole point of error.

We affirm the judgment.

WILSON, J., dissents.