Maranatha Temple, Inc. v. Enterprise Products Co.

• Decision Date: 30 December 1994
• Docket Number: No. 01-93-00830-CV,01-93-00830-CV
• Citation: 893 S.W.2d 92
• Parties: MARANATHA TEMPLE, INC., Appellant, v. ENTERPRISE PRODUCTS COMPANY, Atlantic Richfield Company, Lyondell Petrochemical Company, Conoco, Inc., Diamond Shamrock Company, Diamond Shamrock Refining & Marketing Company, Dixie Pipeline Company, Dow Chemical Company, Dow Pipeline Company, Exxon Pipeline Company, Oxy Fractionators, Inc., F/K/A/ Cities Service Fractionators, Inc., Shell Pipeline Corporation, Tenneco Oil Company, Tenneco Natural Gas Liquids Corporation, Houston Oil & Mineral Corporation, Placid Refining Company, Texas Eastern Corporation, Texas Eastern Transmission Corporation, Texas Eastern Products Pipeline Company, Warren Petroleum Company, a Division of Chevron U.S.A., Inc., and Xral Storage & Terminaling Company, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 92

893 S.W.2d 92

MARANATHA TEMPLE, INC., Appellant, v. ENTERPRISE PRODUCTS COMPANY, Atlantic Richfield Company Lyondell Petrochemical Company, Conoco, Inc., Diamond Shamrock Company, Diamond Shamrock Refining & Marketing Company, Dixie Pipeline Company, Dow Chemical Company, Dow Pipeline Company, Exxon Pipeline Company, Oxy Fractionators Inc., F/K/A/ Cities Service Fractionators, Inc., Shell Pipeline Corporation, Tenneco Oil Company, Tenneco Natural Gas Liquids Corporation, Houston Oil & Mineral Corporation Placid Refining Company, Texas Eastern Corporation, Texas Eastern Transmission Corporation, Texas Eastern Products Pipeline Company, Warren Petroleum Company, a Division of Chevron U.S.A., Inc., and Xral Storage & Terminaling Company, Appellees.

No. 01-93-00830-CV.

Court of Appeals of Texas Houston (1st Dist.).

Dec. 30, 1994.

Rehearing Overruled Feb. 9, 1995.

Tom F. Coleman, Jr., Thomas Lee Bartlett, Houston, for appellant.

Frank W. Morgan, B.D. Griffin, Woodlands, Martin D. Birne, Craig B. Glidden, Timothy J. Hill, Raybourne Thompson, Jr., David M. Bond, Arthur E. Murphy, Michael Hendryx, Heidi Ferenz, Robert J. Malinak, Dara L. Miles, John C. Allen, Christy Hext, Walter F. "Trey" Williams, David W. Prasifka, Edward J. Howlett, II, Glen M. Boudreaux, David S. Curcio, Michael V. Winchester, Dallas, James F. Tilson, F. William Mahley, Joseph S. Jaworski, William J. Sommers, Jr., Peggy O. Montgomery, Karen B. Satterlee, Michael Fredett, Houston, for appellees.

Before MIRABAL, WILSON and DUGGAN, JJ.

OPINION

DUGGAN, Justice.

Maranatha Temple, Inc. (Maranatha), the plaintiff below, appeals a summary judgment granted to the defendants in a multi-cause of action lawsuit. We affirm.

The Facts and Procedural History

Maranatha is a nonprofit corporation that operates a church in Mont Belvieu, Texas. The appellees own or operate petrochemical or hydrocarbon facilities or pipelines as part of an underground storage facility in Mont Belvieu. Apparently because of industrial accidents over the years at the hydrocarbon facilities, on April 30, 1986, some of the appellees announced a plan (the buy-out program) to purchase residential and church properties adjacent to the facilities. According to the press release, if all properties inside the program area were purchased, no home in Mont Belvieu would be located within 800 feet of a storage well. Although not a home, Maranatha, contending it was within 800 feet of a storage well, expected to be tendered a purchase offer for its property. It did not receive one. The appellees' representatives stated that Maranatha was never in the buy-out program area.

The announcement was preceded by the signing of an Agreement of Co-Owners (the Agreement) by Arco Mont Belvieu Corporation, Conoco Mont Belvieu Holdings, Inc., D-S Mont Belvieu, Inc., Enterprise Mont Belvieu Program Company, Mont Belvieu Land Company, Chambers County Land Company, Warren Petroleum, Inc., and Belvex, Inc. Under the Agreement, the co-owners agreed to become tenants in common with regard to certain property in the Mont Belvieu area, either owned or to be acquired, and to share expenses with regard to the acquisition and maintenance of such property.

On April 2, 1987, the city of Mont Belvieu, the Mont Belvieu Program ¹, and the Mont Belvieu Industry Association ² Steering Committee (represented by Robin Pate of appellee Enterprise Products Company) signed a Memorandum of Understanding (the Memorandum). Under the Memorandum, the city agreed to end a lawsuit against the appellees and to withdraw from various Railroad Commission proceedings. The appellees agreed to appraise and issue offers to purchase the residences of persons within a specified area and to explore in good faith with the city ways of acquiring property outside the area, but within an area originally proposed by the city.

Maranatha filed suit against some of the appellees on May 5, 1987, in Harris County, Texas, seeking actual and exemplary damages based on negligence, nuisance, and misrepresentation. In an amended petition, Maranatha asserted several new causes of action, including breach of contract, antitrust violations, and conspiracy, asked for damages, ³ abatement of the nuisance, and reformation, and included all of the appellees reflected in the style of this cause.

The appellees moved to transfer venue. The trial court granted the appellees' motions and transferred venue to Chambers County, where Mont Belvieu is located, on July 25, 1988. The Chambers County trial court granted the appellees' motions for summary judgment on November 15, 1991.

Maranatha appealed the November 15, 1991, summary judgment. On July 16, 1992, this Court reversed the summary judgment and remanded the cause to the trial court, holding that it was error to transfer venue from Harris County to Chambers County. Maranatha Temple, Inc. v. Enterprise Prods. Co., 833 S.W.2d 736, 742 (Tex.App.--Houston [1st Dist.] 1992, writ denied). We did not address the merits of the summary judgment, because to do so would have been advisory. Id.

The cause was transferred back to Harris County. On July 23, 1993, the appellees again moved for summary judgment, supplementing the original summary judgment motions they had filed in Chambers County. In their motions for summary judgment, the appellees asserted that (1) all of Maranatha's claims in its ninth amended original petition were barred by the relevant statutes of limitation; (2) all of Maranatha's claims failed to state a cause of action; and (3) no genuine issue of material fact existed and Maranatha could not prevail on at least one element of each of its causes of action. On September 8, 1993, the Harris County trial court granted summary judgment on all grounds, stating:

Having considered the pleadings, motions and briefs, the responses thereto filed by plaintiff, and the stipulations among the parties on special exceptions, ⁴ the court is of the opinion that there are no genuine issues of material fact and the motions are well-taken and therefore should be granted.... [S]ummary judgment is granted in favor of defendants on all issues, and all grounds.

(Emphasis added.)

In seven points of error, Maranatha attacks the summary judgment as it pertains to its nuisance, breach of contract, negligence, and antitrust causes of action, challenges the appellees' limitations defenses, and complains that the trial court erred in limiting the scope of its discovery and evidence.

Maranatha's Brief

Before turning to the issue of whether the trial court erred in granting summary judgment to the appellees, we must address the propriety of Maranatha's brief, the instrument by which Maranatha hopes to persuade us that the court did indeed err. Rule 74(h) of the Texas Rules of Appellate Procedure provides that appellate briefs in civil cases may not exceed 50 pages, except upon motion granted by the court of appeals. Maranatha moved to file a brief in excess of the 50-page limit, and we granted the motion, ordering that Maranatha's brief "SHALL NOT BE OVER 85 PAGES." (Emphasis in order.) While Maranatha's brief ends on page 83, at page 21 of the brief, Maranatha "incorporates" into its brief over 200 pages of argument from various responses which were filed in the trial court and are now part of the transcript.

The appellees argue that Maranatha's "incorporation" of the additional argument into its brief "clearly violates the spirit of TEX.R.APP.P. 74(h) and [this Court's] order limiting [Maranatha's] brief to 85 pages." We agree. As such, we strike from Maranatha's brief the material Maranatha seeks to "incorporate." We will not consider the portions of the transcript Maranatha seeks to "incorporate" into its brief to be part of its brief, although we will consider them as part of the record.

The Standard of Review

One of the purposes of summary judgment is to eliminate patently unmeritorious claims. Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex.1952). A defendant who seeks summary judgment must prove conclusively that the plaintiff cannot prevail. Griffin v. Rowden, 654 S.W.2d 435, 436 (Tex.1983); Jaime v. St. Joseph Hosp. Found., 853 S.W.2d 604, 607 (Tex.App.--Houston [1st Dist.] 1993, no writ). Below, we address two grounds on which summary judgment for a defendant is proper, and set out the guidelines for our review of a summary judgment.

1. The Negation of an Element of the Plaintiff's Cause of Action

A defendant can prove conclusively that the plaintiff cannot prevail by showing that at least one element of the plaintiff's cause of action has been conclusively established against him. Gray v. Bertrand, 723 S.W.2d 957, 958 (Tex.1987); Jaime, 853 S.W.2d at 607. A matter is "conclusively established" for summary judgment purposes if ordinary minds cannot differ regarding the conclusion to be drawn from the evidence. Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657-58 (Tex.App.--Dallas 1992, no writ) (citing Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982)).

When the defendant has produced competent evidence negating a necessary element of the plaintiff's cause of action, the plaintiff, to avoid summary judgment, must then introduce evidence that raises a fact issue on the element the defendant is trying to negate. Sakowitz, Inc. v. Steck, 669 S.W.2d 105, 107-108 (Tex.1984); Jaime, 853 S.W.2d at 607. If the plaintiff fails to introduce such evidence, i.e., if the summary judgment evidence establishes that there is no genuine issue of material fact, then summary judgment is proper. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); Enchanted Estates Community Ass'n v. Timberlake Improvement Dist., 832 S.W.2d 800, 801 (Tex.App.--Houston [1st Dist.] 1992, no writ).

2. The Lack of a Cause of Action

If the plaintiff's petition affirmatively demonstrates that no cause of action exists or that the plaintiff's recovery is barred, no opportunity to amend is necessary,...