Waddy v. City of Houston

• Decision Date: 02 July 1992
• Docket Number: No. 01-90-00738-CV,01-90-00738-CV
• Citation: 834 S.W.2d 97
• Parties: Gordon M. WADDY, Appellant, v. The CITY OF HOUSTON, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 97

834 S.W.2d 97

Gordon M. WADDY, Appellant, v. The CITY OF HOUSTON, Appellee.

No. 01-90-00738-CV.

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

July 2, 1992.

Rehearing Denied Aug. 6, 1992.

William E. Mallia, Houston, for appellant.

Richard L. Anderson, Richard T. Peel, Houston, for appellee.

Before DUGGAN, WILSON and MIRABAL, JJ.

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. Waddy'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-movant 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. Kung, 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...