Phillips Natural Gas Co. v. Cardiff
| Decision Date | 10 October 1991 |
| Docket Number | No. 01-90-00473-CV,K-B,01-90-00473-CV |
| Citation | 823 S.W.2d 314 |
| Parties | PHILLIPS NATURAL GAS COMPANY, Appellant, v. John V. CARDIFF, Jr., James L. Cardiff, Robert L. Cardiff, George H. Cardiff, William P. Cardiff, Ella E. Cardiff Kuchenbecker, Individually and as Independent Executrix of the Estate of Don Hall Cardiff,Associates, and Westland Ventures, Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Thomas L. Schubert, Lori M. Gallagher, William D. Noel, Houston, for appellant.
Jon L. Tankersley, Stanley B. Binion, Houston, for appellees.
Before DUGGAN, MIRABAL and O'CONNOR, JJ.
This is an appeal by Phillips Natural Gas Company (PNG), appellant, from a partial summary judgment granted John V. Cardiff, Jr., et al., appellees, from the denial of a second motion for partial summary judgment by PNG, and from an award of damages by the jury.
In 1975, Seaway Pipeline, Inc. (Seaway) constructed a 500-mile, 30-inch pipeline from Freeport, Texas to Cushing, Oklahoma. By agreement dated March 4, 1976, Seaway purchased a private easement in the Cardiffs' property for the purpose of constructing, maintaining, and operating a pipeline "solely for the transportation of crude oil." (emphasis added.) The easement covers a strip of land approximately two miles long and 60 feet wide and consists of 14.778 acres. Seaway constructed the pipeline and continuously transported crude oil through the pipeline until April 1, 1984.
On May 1, 1984, PNG purchased a 347-mile segment of the 500-mile pipeline for the purpose of transporting natural gas. By purchasing the pipeline, PNG obtained the assignment of Seaway's rights and interests under the easement agreement.
Recognizing that the easement agreement permitted the right to transport only crude oil, PNG commenced negotiations with the Cardiffs to obtain the additional right to transport natural gas. After negotiations with the Cardiffs proved unsuccessful, PNG filed a condemnation action to acquire the right to transport natural gas through the two-mile piece of pipe located on the Cardiffs' property.
On October 12, 1984, based on the commissioners' decision, the trial court signed a condemnation order and a writ of possession, both of which expressly granted PNG the immediate right to transport natural gas through the pipeline on the easement. On December 27, 1984, pending appeal to the trial court, PNG began transporting natural gas through the two-mile piece of pipeline.
On May 26, 1988, the trial court granted a partial summary judgment in favor of PNG. The partial summary judgment provided that:
(1) PNG is a gas utility vested with the power of eminent domain;
(2) PNG made a proper determination of public necessity to transport natural gas;
(3) prior to filing this condemnation action, PNG negotiated in good faith for the right to transport natural gas; and
(4) PNG complied with the statutory prerequisites in condemning the right to transport natural gas.
Thereafter, the Cardiffs and PNG both filed motions for summary judgment (PNG's second motion for summary judgment). In its second motion for summary judgment, PNG sought a declaration that (1) PNG was vested with full title and all rights and interests provided in the easement, and (2) the right to transport natural gas is a condemnable right.
On December 5, 1988, the trial court granted a partial summary judgment in favor of the Cardiffs and denied PNG's second motion for partial summary judgment. The partial summary judgment provided that:
(1) the easement was abandoned and thereby extinguished prior to or as of October 12, 1984;
(2) under the terms of the easement agreement, the easement and right-of-way had become null and void and had reverted to the Cardiffs;
(3) under the terms of the easement agreement, title to the two-mile pipeline had been forfeited to the Cardiffs;
(4) in light of the foregoing rulings, PNG's condemnation of only the right to transport natural gas through the two-mile pipeline constituted an "improper taking."
The trial court did not expressly state the bases for these holdings, but stated that the holdings were founded on the parties' oral arguments, on the motions, authorities cited therein, and on interrogatory responses.
Following the entry of the partial summary judgment in their favor, the Cardiffs filed a counterclaim alleging that PNG's wrongful possession and use of the Cardiffs' land and pipeline constituted a trespass. Thereafter, PNG amended its original petition in condemnation to obtain an easement for both the pipeline and the right to transport natural gas. On January 3, 1989, PNG took possession of the easement and pipeline pursuant to the order of the trial court.
A jury trial was held to determine (1) trespass damages, (2) the value of the new easement to transport natural gas, and (3) the value of the two-mile piece of pipe in the ground as of January 3, 1989. In answers to the four questions submitted, the jury found: (1) the precondemnation trespass damages for the value of the use of the easement and the two-mile piece of pipe on the Cardiffs' property between October 12, 1984, and January 3, 1989, was $1,102,999; (2) the value of the new easement as of January 3, 1989, was $147,001; (3) PNG had not acted with malice in taking possession of the property and using it between October 12, 1984, and January 2, 1989; and, therefore, (4) no punitive damages were due by PNG to the Cardiffs.
In points of error one through five, PNG contends that the trial court erred (1) in granting the Cardiffs' motion for partial summary judgment; (2) in denying PNG's cross-motion for partial summary judgment; (3) in its four rulings in the December 5, 1988 summary judgment; (4) in either overruling PNG's motion for new trial and motion to correct, modify, or reform the judgment, or in rendering judgment, because the rulings and legal conclusions in the December 5, 1988, partial summary judgment were incorrect.
In reviewing a summary judgment, this Court must determine whether the summary judgment proof establishes as a matter of law that there are no genuine issues of fact and that the movant is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); TEX.R.CIV.P. 166a(c). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Furthermore, all reasonable inferences will be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). If the summary judgment was improperly granted, this Court would normally reverse the judgment and remand the cause for a trial on the merits. Tobin v. Garcia, 159 Tex. 58, 63-64, 316 S.W.2d 396, 400 (1958). However, where both parties file a motion for summary judgment, and one is granted and one is denied, the denial may be considered by the reviewing court if the appealing party complains of both the granting of the opponent's motion and the denial of its own motion. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). This court may then reverse the trial court's judgment and render such judgment as the trial court should have rendered, including rendering judgment for the other movant. Id.
PNG argues that the easement was not abandoned, because there was no abandonment under the terms of the easement agreement or the common law. The Cardiffs argue, and the trial court agreed that, under the common law, PNG's intent to change the use, or its actual change of use, of the express easement constituted abandonment.
When a written agreement contains an express provision, the written agreement, not the common law on that subject, controls. Kothe v....
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