Mary Stephens, Life Estate and Charles M. Stephens Farm v. LCRA Transmission Services Corporation

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-06-00604-CV

Mary Stephens, Life Estate and Executor, Charles M. Stephens Farm, Appellant

v.

LCRA Transmission Services Corporation, Appellee

FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT

NO. 15,922, HONORABLE C. W. DUNCAN JR., JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Mary Stephens sued LCRA Transmission Services Corporation (LCRA-TSC) seeking

over $1.4 million in damages. The district court granted summary judgment in favor of LCRA-TSC

as to all of Ms. Stephens's claims without stating the grounds. Stephens appealed, contending that

the district court erred in granting summary judgment because "Plaintiffs had previously established

as a matter of law that the evidence . . . was sufficient to raise a genuine issue of material fact as to

each element of Plaintiff's cause of action," that the district court ignored her evidence, and that

LCRA-TSC's "no evidence" grounds were "not sufficiently specific in challenging the evidentiary

support for the element of causation." (1) We conclude that the district court did not err in granting

summary judgment on this record, and will affirm the judgment.

Ms. Stephens's central allegation is that LCRA-TSC caused her property damage

and mental anguish in connection with its cutting of trees and brush near LCRA-TSC power lines

on her property during June and November of 2004. It is undisputed that LCRA-TSC power lines

run through Stephens's property and that, beginning in the 1920s, the company or its predecessors

held an easement for "an electrical transmission and distributing line . . . [and] the right to remove

from said lands all trees and parts thereof, or other obstructions, which endanger or may interfere

with the efficiency of said line or its appurtenances." Stephens argues that the easement had been

voided in 2002 and that LCRA-TSC acted illegally in entering her property and cutting her trees.

Alternatively, Stephens contends that the extent of LCRA-TSC's tree-cutting--which, she urges,

entailed clear-cutting dozens of native pecan trees and denuding areas "like a bald head"--went far

beyond previous utility tree-trimming and exceeded LCRA-TSC's rights under the easement. This

destruction of vegetation, Stephens further alleges, caused serious erosion on the property. Stephens

also pled that LCRA-TSC's "heavy machinery" tore up approximately 600 feet of road on the

property, rendering it unusable between November 1, 2004 and January 20, 2005.

Ms. Stephens's claims implicate LCRA-TSC's sovereign immunity. The LCRA

possesses sovereign immunity: it is a conservation and reclamation district created by statute,

see Act of Nov. 10, 1934, 43rd Leg., 4th C.S., ch. 7, § 2(j), 1934 Tex. Gen. Laws 19 , 21 (current

version at Tex. Spec. Dist. Code Ann. §§ 8503.001 -.031 (West Supp. 2007)), and the LCRA-TSC

is its transmission service provider affiliate created under chapter 152 of the water code. See

Tex. Water Code Ann. §§ 152.001 -.302 (West 2004 & Supp. 2007); see also Tex. Civ. Prac. & Rem.

Code Ann. § 101.001 (3)(D) (West 2005) ("governmental unit" under tort claims act includes an

"institution, agency, or organ of government the status or authority of which are derived from

the Constitution of Texas or from laws passed by the legislature under the constitution.").

Ms. Stephens's claims for monetary damages against LCRA-TSC are thus barred by sovereign

immunity unless the state has expressly waived that immunity. See, e.g. , General Servs. Comm'n

v. Little-Tex Insulation Co. , 39 S.W.3d 591, 594 (Tex. 2001).

Invoking article I, section 17 of the Texas Constitution, Ms. Stephens asserts a

claim for inverse condemnation of her property. See Tex. Const. art. I, § 17. She complains of

"easement violation"; "severe, permanent, irreversible property damage"; "obstruction of agricultural

operation" (2) ; and what she terms LCRA-TSC's "attrition" against her, or mental anguish. Because

article I, section 17 of the Texas Constitution entitles a property owner to compensation for the

taking, damaging or destruction of his property for public use, sovereign immunity is not a shield

against an inverse condemnation action brought under that provision. Tex. Const. art. I, § 17 (3)

; State

v. Holland , 221 S.W.3d 639, 643 (Tex. 2007). To prevail on her inverse condemnation claim,

Ms. Stephens was required to prove that a governmental actor acted intentionally to take or damage

her property for a public use. See Holland , 221 S.W.3d at 643 . Furthermore, because the right to

compensation under article I, section 17 applies only to the taking, damage, or destruction of a

person's property for public use "unless by the consent of such person," consent is an affirmative

defense to an inverse condemnation claim. See Tex. Const. art. I, § 17; City of Houston v. Crabb ,

905 S.W.2d 669, 674-75 (Tex. App.--Houston [14th Dist.] 1995, no pet.).

In its summary-judgment motion, LCRA-TSC asserted that it was entitled to

judgment as a matter of law on Stephens's inverse condemnation claim because its summary-judgment evidence established that it acted within its rights under the easement when cutting the

trees and brush in question. See Marcus Cable Assocs. v. Krohn , 90 S.W.3d 697, 700 (Tex. 2002)

(consent may be based on express easement); see also Holland , 221 S.W.3d at 643-44 (when

government acts pursuant to colorable contract rights, it lacks necessary intent to take under

its eminent-domain powers). LCRA-TSC also contended that there was no evidence it acted with

intent to cause any of the incidental or consequential damages that Ms. Stephens alleges resulted

from its tree-removal activities under the easement, such as erosion. See City of Dallas v. Jennings ,

142 S.W.3d 310, 314 (Tex. 2004). LCRA-TSC also sought summary judgment on grounds that,

among others, Ms. Stephens failed to plead a waiver of sovereign immunity under the tort claims act

and presented no evidence that her claims fell within any waiver. See Tex. Civ. Prac. & Rem. Code

Ann. § 101.021 , .025 (West 2005). Specifically, LCRA-TSC challenged whether there was any

evidence of "property damage, personal injury, or death aris[ing] from the operation or use of a

motor vehicle or motor-driven equipment" or "personal injury or death . . . caused by a condition or

use of tangible personal or real property." Id . § 101.021.

We review the district court's summary judgment de novo. Valence Operating Co.

v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott ,

128 S.W.3d 211, 215 (Tex. 2003). LCRA-TSC raised both "traditional" and "no-evidence" grounds

in its motion for summary judgment. Under the former standard, summary judgment is proper when

there are no disputed issues of material fact and the movant is entitled to judgment as a matter of

law. Tex. R. Civ. P. 166a(c). When reviewing a summary judgment, we take as true all evidence

favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts

in the non-movant's favor. Valence Operating Co. , 164 S.W.3d at 661 ; Knott , 128 S.W.3d at 215 .

A defendant who conclusively negates at least one essential element of a cause of action is entitled

to summary judgment on that claim. Southwestern Elec. Power Co. v. Grant , 73 S.W.3d 211, 215

(Tex. 2002). If the movant can show that it is entitled to judgment as a matter of law, the burden

shifts to the non-movant to present evidence raising a fact issue to avoid summary judgment. Nixon

v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548-549 (Tex. 1985).

A no-evidence motion for summary judgment must be granted if, after an adequate

time for discovery, (1) the moving party asserts 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,

and (2) the non-movant fails to produce more than a scintilla of summary-judgment evidence raising

a genuine issue of material fact on those elements. Tex. R. Civ. P. 166a(i). A no-evidence summary

judgment is essentially a directed verdict granted before trial, to which we apply a legal-sufficiency

standard of review. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 750-51 (Tex. 2003); Perdue

v. Patten Corp. , 142 S.W.3d 596, 603 (Tex. App.--Austin 2004, no pet.). A no-evidence summary

judgment will be sustained when: (1) there is a complete absence of evidence of a vital fact; (2) the

court is barred by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the

evidence conclusively establishes the opposite of a vital fact. King Ranch , 118 S.W.3d at 751 .

We view the evidence in the light most favorable to the non-movant, disregarding all contrary

evidence and inferences. Id . (citing Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706,

711 (Tex. 1997)). More than a scintilla of supporting evidence exists if the evidence would allow

reasonable and fair-minded people to differ in their conclusions. Id . "Less than a scintilla of

evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or

suspicion' of a fact." Id . (quoting Kindred v. Con/Chem, Inc. , 650 S.W.2d 61, 63 (Tex. 1983)).

Because the district court's order does not specify the grounds for its summary

judgment, we must affirm the summary judgment if any of the theories presented to the district court

are meritorious. Knott , 128 S.W.3d at 216 .

Turning first to LCRA-TSC's ground that it was acting within its rights under

the easement, LCRA-TSC attached summary-judgment evidence that included the affidavits

of Kelly Wells and Craig Johnson. Wells, LCRA's Supervisor of Real Estate Services, testified

concerning LCRA-TSC's easement through Ms. Stephens's property. Attached to her affidavit was

an easement dated July 18, 1926, with A.B. Miller and others as grantor and Texas Public Utilities

Company as grantee, recorded in the Lampasas County deed records. The conveyance included:

an easement or right-of-way for an electrical transmission and distributing line,

consisting of variable numbers of wires, and all necessary and desirable

appurtenances (including towers or poles made of wood, metal, or other materials,

telephone and telegraph wire, props and guys), at or near the location and along the

general course now located and staked out by the said Company over, across and

upon the following described lands . . . [metes and bounds description].

Together with the right of ingress and egress over my (our) adjacent lands to or from

said right-of-way for the purpose of constructing, reconstructing, inspecting,

patrolling, hanging new wire on, maintaining and removing said line and

appurtenances, the right to relocate along the same general direction of said lines; the

right to remove from said lands all trees and parts thereof, or other obstructions,

which endanger or may interfere with the efficiency of said line or its appurtenances ;

and the right of exercising all other rights hereby granted.

(Emphasis added). Wells explained that the easement's metes and bounds description "encompasses

that portion of what is known as transmission line T-154 across the Stephens property in Lampasas

County." Also attached was a copy of a Transfer and Assignment from Texas Power and Light

Company to the LCRA, dated August 31, 1939, and a January 1, 2002 Transfer and Assignment

from LCRA to LCRA-TSC. Wells explained that these conveyances were "the operative transfer

of all easements on transmission line T-154, including the Miller easement."

Johnson averred that he was the LCRA's Area Supervisor for its Line Maintenance

Authority and had been a certified arborist since 1992. He explained that he had worked for the

LCRA since 1997, and "[d]uring that time . . . have supervised and worked on inspecting and

maintaining existing electric transmission lines owned by LCRA and . . . LCRA-TSC." (4) Johnson

elaborated that, "Part of the job of maintenance of transmission lines is to clear vegetation from the

transmission line easements and rights-of-way . . . to prevent any possible, inadvertent paths to

ground for the electric currents in the electric conductors, clearing space for maintenance and repair

crews to have access to support structures, such as electric transmission towers, and to clear the

right-of-way to allow vehicle and foot traffic by transmission line inspectors and patrolmen."

Johnson recounted a series of events related to LCRA-TSC's work on Ms. Stephens's

property in 2004:

In June 2004, LCRA-TSC crews were performing routine maintenance on the

electric transmission easement known as T-154. That work entailed some mowing,

tree cutting, and shredding in the right-of-way to obtain access to a transmission

tower. The mulch that resulted from this maintenance was spread across the

Stephens property at the top of a hill. Ms. Stephens began complaining that the

removal of the trees and brush caused erosion on her property. In October 2004, after

some heavy rains, LCRA-TSC personnel inspected her property and did not notice

anything out of the ordinary. The area she pointed out is in a natural drainage and

was not any more unusual than any hill country area with the underbrush removed.

Ms. Stephens also complained that her roads were eroding. So, in an effort

to satisfy her, the crews filled in the road and smoothed it out. She continued to

complain, so crews did some more work, placing rocks on the side of the road to cut

down on erosion and installing a culvert. None of this work was necessitated by the

action of the crews. The eroded areas were not even in the transmission line right-of-way. In other words, LCRA-TSC crews did not cause any damage to the road, nor

did they cause erosion of the road.

In October 2004, LCRA-TSC crews returned to cut larger trees that had

grown in the easement near the river. I was present when the work was performed.

Some large trees, including pecans, were removed because of the danger of their

interfering with the transmission line and right-of-way. Trees were removed which

were already dangerously close to the electric conductors and others which, if left

uncut, could grow into the danger area. Based on the species of trees, their location

in relation to the electrical conductors, the height of the electrical conductors from

the ground, and the potential for trees to grow over time into a height that would

interfere with the conductors, there is no doubt that the trees which were removed

from the Stephens property would have created the danger of an electrical contact to

ground in time. For example, elms and hackberries were removed from the area near

the top of the hill because they could quickly grow into the conductors. Trees near

the river were already close enough to interfere with the conductors.

Johnson further explained:

The danger area is an area not just directly under the electric conductors [but] . . .

encompasses an area where the branches of trees could come into close proximity

with the conductors even if the trunks of the trees are on the outer edge of the

easement. A tree branch does not have to actually touch the electrical conductor in

order to cause a short circuit. The area of proximity also includes the area where the

conductors could sway in high winds or sag in warm weather. Other trees, such as

short junipers, were left on the side of the hill within the easement area, because they

would not have the potential to interfere with the efficiency of the transmission line

or impair LCRA-TSC crews in utilizing the right of way for inspections and repair.

Johnson added,

All of the vegetation, including pecan and other trees, that were cut or trimmed on

the Stephens property were removed because of the danger that they could interfere

with the electric conductors, the electric transmission support structures or they

obstructed the ability of LCRA-TSC crews to inspect, patrol, maintain or reconstruct

the transmission line. Based on my experience and knowledge, all of the vegetation

that was removed from the Stephens property was necessary to prevent possible

interference with the electric line and right-of-way.

Attached to Johnson's affidavit were seven photographs, which Johnson testified were true

and accurate representations of the trees along the easement on the Ms. Stephens property. Five of

the photos showed the trees before cutting. According to Johnson, those photos "clearly show that

the trees had grown to such an extent that they could interfere with the electric transmission

conductors." The remaining two photos depicted the easement after the cutting and, as Johnson

indicates, "show that not all of the trees had to be removed to maintain the efficiency of the

transmission line and right-of-way."

Johnson further averred that "[d]espite Ms. Stephens'[s] claims, there is no evidence

of erosion caused by the cutting of trees" and that "LCRA-TSC certainly did not intend to damage

or destroy any property outside the easement, nor was any other damage considered to be a likely

result of cutting and removing trees from the easement."

This summary-judgment evidence meets LCRA-TSC's burden of establishing

that its tree- and brush-clearing activities were within its rights under the easement. See DeWitt Cty

Elec. Coop., Inc. v. Parks , 1 S.W.3d 96, 100-01 (Tex. 1999). In response to LCRA-TSC's motion,

Ms. Stephens did not present any evidence meeting the requirements for summary-judgment proof.

We acknowledge that, in the district court, Ms. Stephens filed several hundred pages of

pleadings--often handwritten--various unauthenticated photographs and documents, and witness

statements or "reports" not meeting the requirements for summary-judgment affidavits. We also

acknowledge that Ms. Stephens--who states that she is over ninety years of age--has represented

herself throughout these proceedings. It is apparent from the record that Ms. Stephens believed

her filings alone established her entitlement to the damages she claimed and necessarily sufficed

as a response to LCRA-TSC's summary-judgment motion. However, these filings did not

meet the requirements for summary-judgment proof. See Tex. R. Civ. P. 166a(c), (f). On appeal,

Ms. Stephens complains that the district court disregarded her evidence. Under the governing law,

the district court did not err in its ruling. Rather, though not unsympathetic to Ms. Stephens's

situation--and having cautioned her regarding the risks of proceeding without counsel in a case of

this complexity--the district court complied with its duty to apply the same legal standards to

Ms. Stephens that govern all litigants, whether represented or unrepresented. See Mansfield State

Bank v. Cohn , 573 S.W.2d 181, 184-85 (Tex. 1978) ("Litigants who represent themselves must

comply with the applicable procedural rules, or else they would be given an unfair advantage over

litigants represented by counsel."). We are bound to do the same.

Ms. Stephens also argues that the easement is void due to the effect of a Special

Warranty Deed, dated January 1, 2002, through which LCRA conveyed certain property to LCRA-TSC. The sole summary-judgment evidence regarding this deed or its effect is Wells's testimony

that the deed conveyed only property in which LCRA had fee title, and did not apply to

Ms. Stephens's property. (5) The district court did not err in granting summary judgment on

this ground.

Similarly, in response to LCRA-TSC's no-evidence grounds regarding the intent

element of her inverse condemnation claim or the existence of a waiver of sovereign immunity,

Ms. Stephens did not present evidence meeting the requirements for summary-judgment proof. She

does argue that LCRA-TSC's motion was "not sufficiently specific in challenging the evidentiary

support for the element of causation." To the extent she is referring to LCRA-TSC's no-evidence

grounds regarding the intent element of Stephens's inverse condemnation claim and the existence

of a sovereign immunity waiver, we conclude that LCRA-TSC was sufficiently specific in stating

those grounds. The district court did not err in granting summary judgment on these grounds. As these summary-judgment grounds are dispositive of Ms. Stephens's claims, we

affirm the district court's final judgment.

__________________________________________

Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: July 17, 2008

1. Ms. Stephens has filed a brief, with an appendix, plus numerous motions that present

arguments. Some of these filings contain or reference matters outside the summary-judgment record.

In our analysis, we have considered all of Ms. Stephens's filings to the extent her arguments

were preserved in the district court and concern matters within the summary-judgment record. See

Tex. R. App. P. 33.1. Because each motion either echoes the arguments already made in her brief,

concerns matters outside the record, or otherwise seeks relief to which Ms. Stephens is not entitled,

we have overruled each motion by separate order.

2. This component of damages appears to include the alleged lost use of the road, which

impacted the use of the property as a deer lease, and the effect of erosion on cattle operations.

3. Article I, section 17 provides:

No person's property shall be taken, damaged or destroyed for or applied to public

use without adequate compensation being made, unless by the consent of such

person; and, when taken, except for the use of the State, such compensation shall be

first made, or secured by a deposit of money; and no irrevocable or uncontrollable

grant of special privileges or immunities, shall be made; but all privileges and

franchises granted by the Legislature, or created under its authority shall be subject

to the control thereof.

Tex. Const. art. I, § 17.

4. Johnson added that he had done similar work for several other electric utilities beginning

in 1989.

5. Both parties attach copies of the deed to their briefs and, while not properly part of the

summary-judgment record, we observe that the instrument explicitly applied solely to property

owned by LCRA in fee simple and excluded "[e]asements and right-of-ways in third parties."