Adams v. City of Weslaco, No. 13-06-00697-CV (Tex. App. 4/23/2009)
| Decision Date | 23 April 2009 |
| Docket Number | No. 13-06-00697-CV.,13-06-00697-CV. |
| Parties | HOWARD ADAMS D/B/A SOUTH TEXAS WASTEWATER, Appellant, v. CITY OF WESLACO AND LIQUID ENVIRONMENTAL SOLUTIONS OF TEXAS, L.P., Appellees. |
| Court | Texas Court of Appeals |
On Appeal from the County Court at Law No. 1 of Hidalgo County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and WITTIG1.
Howard Adams d/b/a South Texas Wastewater (STW), appellant, complains that the trial court erroneously granted summary judgment to appellees, The City of Weslaco (Weslaco) and Liquid Environmental Solutions of Texas, L.P. (LES) (appellee/intervenor). All parties filed for summary judgment. The trial court denied STW's partial motion for summary judgment, and granted appellees' motions. STW essentially presented three claims to the trial court: (1) Weslaco's ordinance unlawfully granted an exclusive franchise to collect grease and grit; (2) STW had a property right in his existing accounts with business customers and was damaged by Weslaco's actions; and (3) STW claimed entitlement to injunctive relief. We will address each of these claims in order. We reverse and render in part, and reverse and remand the remainder of the case.
STW was a contractor for multiple businesses in the City of Weslaco. It was registered by the Texas Commission of Environmental Quality as a sludge transporter, including greasetrap cleaning and disposal. STW had contracts with at least five restaurant businesses in Weslaco to provide greasetrap cleaning and grease removal services. January 4, 2005, Weslaco passed ordinance No. 2004-60, which provided for an exclusive franchise for the collection and disposal of greasetrap waste within the city. In July, Weslaco awarded an exclusive franchise under the new ordinance to Liquid Environmental Solutions of Texas, L. P. The ordinance also provided civil and criminal penalties for companies who use anyone not franchised by the city for the collection and disposal of grease. Although STW was a state regulated business, the city and its ordinance prohibited STW from performing its services with Weslaco businesses. STW challenged the city's authority to pass the ordinance in violation of state law that provides that a person receiving solid waste disposal services from another entity, may continue to do so by showing written documentation that the person is receiving services from another entity. See Tex. Health & Safety Code ANN. § 364.034(e) (Vernon 2004).
We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Summary judgment under rule 166a(c) is proper when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action or if the evidence conclusively establishes all elements of an affirmative defense. See Randall's, 891 S.W.2d at 644. Where the trial court grants the judgment without specifying the grounds, we affirm the summary judgment if any of the grounds presented are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000).
A party may move for summary judgment under rule 166a(i) on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.2 Tex. R. Civ. P. 166a(i); Western Investments, Inc. v. Urena, 162 S.W.3d 547, 557 (Tex. 2005); Duvall v. Texas Dep't of Human Servs., 82 S.W.3d 474, 477 (Tex. App.-Austin 2002, no pet.). Unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact on the challenged elements, the court must grant the motion. Tex. R. Civ. P. 166a(i) & cmt. 1997; Urena, 162 S.W.3d at 548; Duvall, 82 S.W.3d at 477-78.
In reviewing a no-evidence claim, we view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002); Duvall, 82 S.W.3d at 478. If more than a scintilla of evidence exists, it is legally sufficient. Goodman, 80 S.W.3d at 577. Evidence is more than a scintilla when it rises to the level that would enable reasonable and fair-minded people to differ in their conclusions. Duvall, 82 S.W.3d at 478. But when evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, it is no more than a scintilla and, in legal effect, is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004);Duvall, 82 S.W.3d at 478.
Because the trial court's order does not specify the grounds for granting summary judgment, we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 217 (Tex. 2004). A no-evidence summary judgment is improperly granted if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Evidence favorable to the non-movant will be taken as true in deciding whether there is a disputed material fact issue that precludes summary judgment. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference must be indulged in favor of the non-movant and any doubt resolved in its favor. Id. at 549.
In construing a statute, we presume that the Legislature intended the entire statute to be effective. See Tex. Gov't Code § 311.021(2) (Vernon 2007). The law is settled that every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause, and word, is to be given effect if reasonable and possible. Texas Workers' Compensation Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000) (citing Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963)). In addition, we do not view disputed portions of a statute in isolation. Id. (citing Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex. 1994)).
According to STW, Weslaco had no statutory authority to prohibit a person who is receiving solid waste disposal service from another entity from continuing to use that entity if it provides the city with written documentation to that effect. STW cites Texas Health and Safety Code section 364.034(e) which provides:
(e) This section does not apply to a person who provides the public or private entity, public agency, or county with written documentation that the person is receiving solid waste disposal services from another entity. Nothing in this section shall limit the authority of a municipality to enforce its grant of a franchise for solid waste collection and transportation services within its territory.
Tex. Health and Safety Code § 364.034(e) (Vernon 2004). After the effective date of the Weslaco ordinance, written documentation was submitted by five restaurant owners who invoked this provision, and notified the city that they were receiving waste collection services from STW and intended to continue that service. Weslaco denied that right and told the customers they were required to use the new designated vendor.
STW argues that the plain language of the statute allows customers to select their own waste collection provider by complying with the statute. It explains that the Texas Constitution forbids cities from passing any ordinance that conflicts with a state statute. Tex. Const. art. XI § 5. Before 2001, the Weslaco ordinance may have been proper because no statute prevented it. However, in 2001 the legislature added section (e) which then read:
(e) This section does not apply to a person who provides the public or private entity, public agency, or county with written documentation that the person is receiving solid waste disposal services from another entity.
Tex. Health & Safety Code § 364.034(e) (Vernon 2002). The following legislative session, the next sentence providing for enforcement was added, which we quoted above. And as STW points out, the statute was again amended after the trial court granted summary judgment in December 2006. Effective September 1, 2007, section (e) now reads:
(e) Except as provided by Subsections (f), (g), and (h), this section does not apply to a person who provides the public or private entity, public agency, or county with written documentation that the person is receiving solid waste disposal services from another entity. Nothing in this section shall limit the authority of a public agency, including a county or a municipality, to enforce its grant of a franchise or contract for solid waste collection and transportation services within its territory. Except as provided by Subsection (f), the governing body of a municipality may provide that a franchise it grants or a contract it enters into for solid waste collection and transportation services under this subchapter or under other law supersedes inside of the municipality's boundaries any other franchise granted or contract entered into under this subchapter.
(f) Notwithstanding the other provisions of this section, a political subdivision, including a county or a municipality, may not restrict the right of an entity to contract with a licensed waste hauler for the collection and removal of domestic septage or of grease trap waste, grit trap waste, lint trap waste, or sand trap waste.
Id...
To continue reading
Request your trial