Roman Forset Pub. Util. Dist. v. McCorkle

Decision Date07 October 1999
Parties(Tex.App.-Beaumont 1999) ROMAN FOREST PUBLIC UTILITY DISTRICT NO. 4 and ROMAN FOREST PUBLIC UTILITY DISTRICT NO. 3, Appellants V. CARL MCCORKLE d/b/a HARVEST CO. and d/b/a HARVEST TREE CO., Appellee NO. 09-98-014 CV
CourtTexas Court of Appeals

Before Walker, C.J., Burgess and Stover, JJ.

O P I N I O N

Don Burgess, Justice.

Roman Forest Public Utility District No. 4 and Roman Forest Public Utility District No. 3 (collectively referred to as "Roman Forest") appeal from a summary judgment granted in favor of Carl McCorkle, d/b/a Harvest Co. and d/b/a Harvest Tree Co. (McCorkle). Roman Forest sued seeking a temporary restraining order and a temporary injunction preventing McCorkle from timbering, cutting trees, clearing, grubbing or otherwise removing any trees from any lot or property within the districts. Roman Forest further sought damages for injury to the ditches, roads and other facilities of the districts caused by McCorkle.

McCorkle then moved for summary judgment on the sole basis that Roman Forest lacks standing to sue as a matter of law. McCorkle contended Roman Forest lacked standing because (1) Roman Forest has no ownership interest in the land claimed to have been damaged, and (2) Roman Forest has no general power to sue for alleged damages to public roads and rights-of-way. On appeal, McCorkle argues the trial court correctly granted summary judgment on his behalf because (1) Roman Forest cannot, as a matter of law, sue for damages to roads and ditches they do not own, (2) Roman Forest has no general power to sue on behalf of the public, and (3) Roman Forest cannot recover against McCorkle for violation of Rules and Regulations that did not apply to him. We first note that McCorkle did not move for summary judgment on the basis that the Rules and Regulations did not apply to him. Therefore, we are unable to affirm the summary judgment on that basis. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996) (appellate court cannot affirm the summary judgment on grounds the parties failed to properly raise before the trial court). Accordingly, we now consider McCorkle's claim Roman Forest had no standing.

We agree that the legislature has given the districts the general power to sue and be sued. Act of April 27, 1971, 62nd Leg., R.S., ch. 84, 1, 1971 Tex. Gen. Laws 774, 785 (formerly TEX. WATER CODE ANN. 54.119(a) (Vernon 1972)) provides that "[a]ll [municipal utility] districts . . . may, through their directors, sue and be sued in the courts of this state in the name of the district." However, the power to sue and be sued does not confer standing; rather, it confers "capacity." "'Capacity' is...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT