Brookshire Katy Drainage District v. Lily Gardens, LLC

MICHAEL MASSENGALE, Justice,

concurring.

I concur in the denial of en banc reconsideration. We 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 in *666 terfere 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 ser-vient 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.

A majority of the justices of the Court voted to overrule the motion for en banc reconsideration.

. 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.”).

. See Restatement (Third) of Property (Servitudes) § 4.9 & cmt.b (2000); see also Severance v. Patterson, No. 09-0387, 2010 WL 8366839 , 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.”).