Brookshire Katy Drainage District v. the Lily Gardens, LLC, Richard E. Fluecker and Kenneth B. Luedecke

Opinion issued February 25, 2011

In The

Court

of Appeals

For The

First

District of Texas

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NO. 01-07-00431-CV

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Brookshire Katy Drainage District , Appellant

V.

The Lily Gardens, LLC, Richard E. Flueckiger and

Kenneth B. Luedecke , Appellees

On Appeal from the 9th District Court

Waller County, Texas

Trial Court Case No. 06-08-18415

OPINION CONCURRING IN

THE DENIAL OF EN BANC RECONSIDERATION

I

concur in the denial of en banc reconsideration. W e are constrained to review the outcome of the actual

proceedings in the trial court, where the District brought an action to enforce

its easement rights, and the property owners filed a summary-judgment motion

contending that the District was not legally entitled to the relief it

sought. Upon the property owners’ filing

of a no-evidence summary-judgment motion, the District was obligated to

“produce summary judgment evidence raising a genuine issue of material

fact.” Tex.

R. Civ. P. 166a(i). That may not have

been an insurmountable burden in this case, but it is a burden that the

District failed to meet.

The District did not argue in its response that the bridge

covering could interfere with maintenance and repair of the drainage

canal. Because the District failed to

make such an argument, the trial court was correct not to deny summary judgment

on that basis, and, more importantly, we cannot reverse on that basis. [1] Application of the ordinary procedural rules

does not undermine the public policy interests underlying an easement dispute

such as this one, which favor a servient estate maximizing its value to the

full extent possible without unreasonably interfering with the interests of the

dominant estate. [2] The improvement to the property at issue

obviously serves to maximize the aggregate utility of the dominant and servient

estates, and thus it should not be discouraged for a reason not timely advanced

by the easement owner.

Properly understood, this is a case about application of the

summary-judgment standards, not the application of substantive law pertaining

to easements. This appeal presents no

legal issue of whether the bridge covering could be considered an obstruction

to maintenance or repair of a drainage canal—that issue was waived because the

District presented the trial court with no argument suggesting that was what

the evidence showed.

Michael Massengale

Justice

A majority of the justices of the Court voted to overrule the

motion for en banc reconsideration.

En banc court consists of Justices Jennings, Keyes, Alcala,

Higley, Bland, Sharp, Massengale, Brown, and Wilson. Chief Justice Radack

not participating.

Justice Alcala, concurring in the denial of en banc

reconsideration.

Justice Massengale, concurring in the denial of en banc

reconsideration.

Justice Jennings, dissenting from the denial of en banc

reconsideration, joined by Justice Keyes.

Justice Keyes, dissenting from the

denial of en banc reconsideration, joined by Justice Jennings.

Justice Wilson, dissenting from the denial of en banc

reconsideration.

[1]

Tex. R. App. P.

33.1; Tex. R. Civ. P. 166a(c)

(“Issues not expressly presented to the trial court by written motion, answer

or other response shall not be considered on appeal as grounds for reversal.”);

State Farm Lloyds v. Page , 315 S.W.3d

525, 532 (Tex. 2010) (“Summary judgment may not be affirmed on appeal on a

ground not presented to the trial court in the motion.”); McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 341

(Tex. 1993) (“[I]ssues a non-movant contends avoid the movant’s entitlement to

summary judgment must be expressly presented by written answer to the motion or

by other written response to the motion and are not expressly presented by mere

reference to summary judgment evidence.”).

[2]

See Restatement (Third) of Property (Servitudes) § 4.9 & cmt. b (2000); see also Severance v.

Patterson , No. 09-0387, 2010 WL 4371438, at *9 (Tex. Nov. 5, 2010) (“Because

the easement holder is the dominant estate owner and the land burdened by the

easement is the servient estate, the property owner may not interfere with the

easement holder’s right to use the servient estate for the purposes of the

easement.”).