Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 5/14/2015 5:01:50 PM CHRISTOPHER A. PRINE Clerk *1 No. 01-14-00723-CV
__________________________________ IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON __________________________________ THE STATE OF TEXAS,
Appellant ,
v. KNA PARTNERS, INC., A TEXAS JOINT VENTURE, Appellee.
__________________________________ SUR-REPLY OF APPELLEE __________________________________ Trial Court Cause No. 1011330 On Appeal from County Civil Court at Law Number Three Harris County, Texas
The Honorable Linda Storey, Judge Presiding __________________________________ VINSON & ELKINS L.L.P. H. Dixon Montague State Bar No. 14277700 e-mail: dmontague@velaw.com Billy C. Dyer
Catherine B. Smith David G. Wall 1001 Fannin Street, Suite 2500 Houston, Texas 77002-6760 Telephone: 713.758.2086 Facsimile: 713.615. 5461 Attorneys for Appellee KNA Partners, Inc., A Texas Joint Venture *2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................. ii
I. At Trial, the State Characterized KNA’s Driveways as Appurtenant
Easements. ....................................................................................................1 II. The Judgment Is Supported by the State’s Agreement, Stipulation, or
Concession....................................................................................................3 A. The State’s Attorney’s Unequivocal Statement to the Trial Court Constitutes an Agreement, Stipulation, or Concession. .............3 B. Alternatively, No Pleading Is Required Because the State Tried the Driveway Issue by Consent. ..........................................................5 III. The State Acknowledges that Payment Is Required Prior to Passage of
Title. .............................................................................................................6 IV. The State’s Appeal Is Moot Because It Is Undisputed That the State
Voluntarily Restored the Driveways. ............................................................7 CONCLUSION AND PRAYER.............................................................................8
CERTIFICATE OF COMPLIANCE.....................................................................10
CERTIFICATE OF SERVICE..............................................................................11
i *3 TABLE OF AUTHORITIES Page(s) Cases
Camarena v. Texas Employment Comm’n ,
754 S.W.2d 149 (Tex. 1988) .......................................................................... 8 City of Houston v. Texan Land and Cattle Co. ,
138 S.W.3d 382 (Tex. App.—Houston [14 th Dist.] 2004, no pet.).................. 6 Employees Finance Co v. Lathram ,
369 S.W.2d 927 (Tex. 1963) .......................................................................... 7 Gen. Land Office of Tex. v. OXY U.S.A., Inc. ,
789 S.W.2d 569 (Tex. 1990) .......................................................................... 8 Highland Church of Christ v. Powell ,
640 S.W.2d 235 (Tex. 1982) .......................................................................... 8 Miga v. Jensen ,
96 S.W.3d 207 (Tex. 2002)............................................................................ 7 Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Martinez ,
800 S.W.2d 331 (Tex. App.—El Paso 1990, no writ)..................................4, 5 Shepherd v. Ledford ,
926 S.W.2d 405 (Tex.App.—Fort Worth 1996),
aff’d , 962 S.W.2d 28 (Tex. 1998)................................................................... 5 Southwestern Resolution Corp. v. Watson ,
964 S.W2d 262 (Tex. 2003) ........................................................................... 6 St. Louis, A. & T. Ry. Co. v. Henderson ,
86 Tex. 307, 24 S.W. 381 (1893) ................................................................... 6 State v. Meyers ,
403 S.W.2d 366 (Tex. 1966) .......................................................................... 1 ii
Constitutions, Rules, and Statutes
Texas Constitution,
art. I, § 17 ...................................................................................................... 6 art. II, § 1 ....................................................................................................... 8 Texas Property Code § 21.042(d)........................................................................2, 5
Texas Rules of Civil Procedure,
Rule 11 .......................................................................................................... 5 Rule 67 .......................................................................................................... 6 Other Authorities
73 Am. Jur. 2d Stipulations § 1 (1974)................................................................... 5
http://www.merriam-webster.com/dictionary/restore ............................................. 4
iii
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:
Appellee files this Sur-reply to respond to the State’s Reply Brief. This case is set for submission without oral argument on May 19, 2015.
I. A T T RIAL , THE S TATE C HARACTERIZED KNA’ S D RIVEWAYS AS
A PPURTENANT E ASEMENTS .
The State agrees in its Reply brief that KNA “has an easement of access” to the abutting roadway, but asserts that KNA’s “nine driveways or curb cuts do not
constitute easements appurtenant.” Reply 2. The State contends that none of
KNA’s cases “support the proposition that curb cuts constitute easements
appurtenant,” when that in act is exactly what they are. See Reply 4. State v.
Meyers , a Texas Supreme Court case cited by KNA, recognizes that “abutting
property owners have certain private rights in existing streets and highways . . .
[and] the most important of these private rights is the right of access to and from
the highway.” State v. Meyers , 403 S.W.2d 366, 370-71 (Tex. 1966). The Texas
Supreme Court expressly referred to this right of access as “an easement
appurtenant to the abutting land.” Id. Emphasis added.
Not only does the Texas Supreme Court authority refer to a driveway access as an easement appurtenant, but the State’s counsel also agreed with that legal
description when it referred to the driveways during the trial. As the State’s
counsel explained to the trial court:
The owner has the right of egress and ingress, access, onto and off of their property. . . . The analysis the courts have employed is, it’s total access from the subject property to the right-of-way and it has the right of access to the – they have an easement appurtenant to the right-of-way.
3 RR 81 (emphasis added); see also 6 RR 127-28; 8 RR 189.
The State asserts in a footnote that testimony by Peter Boecher and John Hudson at trial that KNA held appurtenant easements in the driveways is
“conclusory, unreliable, and misstatements of the law… and no evidence.” Reply
7 n.1. But, the State never made any such objection at trial to that elicited
testimony, and in fact acknowledged the characterization by also referring to the
right of access through the driveways as an easement appurtenant in its cross-
examination of Boecher and Mark Sikes, KNA’s appraisal expert. See, e.g. 6 RR
128; 8 RR 189.
The only manner by which an abutting property owner gains access to a public street is by a curb cut, nine of which were needed in the case of KNA’s
property to support its highest and best use. If the access is altered (i.e., by loss of
curb cuts), the property owner has the right to pursue a claim for that loss as
provided by the Legislature in 2011 in § 21.042(d) of the Texas Property Code.
T EX . P ROP . C ODE § 21.042(d).
II. T HE J UDGMENT I S S UPPORTED BY THE S TATE ’ S A GREEMENT ,
S TIPULATION , OR C ONCESSION .
A. The State’s Attorney’s Unequivocal Statement to the Trial Court Constitutes an Agreement, Stipulation, or Concession.
It is undisputed that the State agreed to restore all nine of the driveways.
But, the State claims that it had no “agreement” or “stipulation” with KNA
regarding restoration of the nine driveway access connections. Reply 7. The State
does acknowledge that it “represented both before and during trial that its project
included reconstruction of the nine driveway access connections.” Id. The State
made this representation with the intent that KNA rely on it, which it did.
In connection with pretrial stipulations, the trial court expressly asked about the curb cuts:
THE COURT: All the curb cuts were included in that [the taking] ?
MR. MONTAGUE: Yes. The curb cuts were included in the taking. THE COURT: We are all talking about curb cuts.
MR. MONTAGUE: If the curb cuts were included in the taking. The State, if you go out there today, has reestablished some of the curb cuts. It’s a consequence of how close the taking is now to the building. Those curb cuts really offer no viable access in and out of the property for the types of traffic that the office/warehouse facility serves.
THE COURT: Is it an agreed or a disputed fact that these buildings are usable or not usable anymore?
MR. MONTAGUE: We have agreed to a stipulation as I think, Your Honor, that as a consequence of the taking, the improvements on the *8 property, correct me if I’m wrong, Mr. Brocato, the improvements on the property after the taking no longer are viable and must be raised. THE COURT: Okay. And is that an agreed fact?
MR. BROCATO: That’s an agreed fact, Your Honor.
THE COURT: Why did ya’ll go put curb cuts back then for, I guess, whatever somebody might tear down the buildings and rebuild?
MR. BROCATO: They can redevelop the site.
THE COURT: That’s what I’m saying. Okay. So, it can be redeveloped with buildings in a different location, configuration or whatever?
MR. BROCATO: Right. And we’ll put all the curb cuts back.
3 RR 7-8 (emphasis added).
The State thus represented on the record to the trial court that all of the curb cuts would be restored. [1] 3 RR 8. While it is true that the parties did not make a
formal stipulation about the curb cuts/driveways to the trial court, the trial court
could properly consider the material representations made by the State’s attorney
on the record, in open court.
A “stipulation” is an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys, respecting some matter incident
thereto. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Martinez , 800 S.W.2d 331,
*9 334 (Tex. App.—El Paso 1990, no writ) (citing 73 Am. Jur. 2d Stipulations § 1, at
536 (1974)). In the National Union case, the court held that the appellant’s
attorney’s statements to the court regarding wage rate in a workers’ compensation
case should be construed as an “agreement or stipulation” within the contemplation
of Rule 11 of the Texas Rules of Civil Procedure. Rule 11 and its mandate
encompass concessions made by counsel in trial court. See Shepherd v. Ledford ,
926 S.W.2d 405, 410 (Tex.App.—Fort Worth 1996), aff’d , 962 S.W.2d 28 (Tex.
1998) (applying Rule 11 to stipulations which included a “concession” by
counsel). Certainly, the State’s attorney’s unequivocal statement to the trial court
on the record constitutes an agreement, stipulation, or concession. And KNA
relied on it; otherwise, it would have pursued a claim for a material impairment of
access. T EX . P ROP . C ODE § 21.042(d).
B. Alternatively, No Pleading Is Required Because the State Tried the Driveway Issue by Consent.
KNA’s land planner, Peter Boecher, prepared a drawing showing that all nine driveways would be restored “After the Taking,” and that Exhibit 10 was pre-
admitted for the trial of this case without any objection from the State. 4 RR 96;
see 16 RR DX10. As outlined in KNA’s Brief of Appellees, numerous witnesses
testified about KNA’s nine curb cuts/driveways and the value that those driveways
added to the property. Br. App’ee 16-18. When issues not raised by the pleadings
are tried by express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. T EX . R. C IV . P. 67; see also
Southwestern Resolution Corp. v. Watson , 964 S.W2d 262, 264 (Tex. 2003)
(holding unpleaded affirmative defense of payment on a note was tried by consent
when the opposing party did not object to testimony about whether payment was
made).
III. T HE S TATE A CKNOWLEDGES THAT P AYMENT I S R EQUIRED P RIOR TO
P ASSAGE OF T ITLE .
The Texas Constitution provides that “No person’s property shall be taken, damaged, or destroyed for or applied to public use, without adequate compensation
being first made, unless by 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.” T EX . C ONST . art. I, § 17 (emphasis added). The payment of
compensation is a condition precedent to the right to take and use, and title does
not vest until payment is made. St. Louis, A. & T. Ry. Co. v. Henderson , 86 Tex.
307, 312, 24 S.W. 381, 384 (1893); see also City of Houston v. Texan Land and
Cattle Co. , 138 S.W.3d 382, 392 (Tex. App.—Houston [14 th Dist.] 2004, no pet.).
The State agrees that in condemnation that title “does not pass until payment is
made.” Reply 5. The State argues, however, that payment does not include
reconstruction of access connections because such reconstruction “was not part of
the compensation.” Id. at 6. The State argues that compensation in condemnation
must only be money damages based on fair market value. See id. But, the State
can point to no authority that excludes compensation “in kind” compensation ( i.e. ,
the restoration of the curb cuts), particularly where that compensation has been
agreed to by the property owner. Moreover, to so hold would foreclose a
condemning authority’s opportunity to make physical modifications to one’s
property to lessen the damages caused by the condemnation as part of the
consideration which is to no one’s benefit.
IV. T HE S TATE ’ S A PPEAL I S M OOT B ECAUSE I T I S U NDISPUTED T HAT THE
S TATE V OLUNTARILY R ESTORED THE D RIVEWAYS .
It is undisputed that all nine driveways have been reconstructed. But, the State still claims that there is still an existing controversy because the judgment
makes passage of title subject to the return of the driveways. However, the State
restored all nine driveways voluntarily and without explicitly reserving the right to
challenge the recitations in the judgment regarding the passage of title – as it
represented to KNA (and the trial court) that it would do both before and during
trial.
How is the State’s conduct any different than a judgment debtor who voluntarily pays the judgment against him without explicitly reserving the right to
appeal? It is a settled rule of law that when a judgment debtor voluntarily pays and
satisfies a judgment rendered against him, the cause becomes moot. Employees
Finance Co v. Lathram , 369 S.W.2d 927, 930 (Tex. 1963). The judgment debtor
thereby waives his right to appeal and the case must be dismissed. See Miga v.
Jensen , 96 S.W.3d 207, 211 (Tex. 2002) (requiring judgment debtor who pays
judgment to express an intent to pursue his appeal); Highland Church of Christ v.
Powell , 640 S.W.2d 235, 236 (Tex. 1982) (noting that expressly reserving the right
to appeal when the judgment is paid is the safest course of action).
The State restored all nine driveways without expressly reserving its right to appeal the recitations in the judgment relating to the restoration of those driveways.
It is a fundamental tenet that this Court cannot decide moot controversies. Gen.
Land Office of Tex. v. OXY U.S.A., Inc. , 789 S.W.2d 569, 570-72 (Tex. 1990);
Camarena v. Texas Employment Comm’n , 754 S.W.2d 149, 151 (Tex. 1988). This
prohibition is rooted in the Texas Constitution’s separation of powers doctrine,
which prohibits courts from rendering advisory opinions. See T EX . C ONST . art. II,
§ 1. Because the State voluntarily restored the driveways without reserving any
appellate rights, this appeal should be alternatively dismissed for want of
jurisdiction.
CONCLUSION AND PRAYER For all the reasons stated above and in KNA’s Brief of Appellee, the Court should affirm the judgment of the trial court or alternatively dismiss the appeal as
moot.
Respectfully submitted, VINSON & ELKINS L.L.P.
/s/ H. Dixon Montague H. Dixon Montague State Bar No. 14277700 dmontague@velaw.com Billy C. Dyer
State Bar No. 06312580 bdyer@velaw.com Catherine B. Smith State Bar No. 03319970 csmith@velaw.com David G. Wall State Bar No. 25060788 dwall@velaw.com 1001 Fannin Street, Suite 2500 Houston, Texas 77002-6760 Telephone: 713.758.2086 Facsimile: 713.615. 5461 Attorneys for Appellee, KNA Partners, A Texas Joint Venture *14 CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this Sur-reply contains 1,969 words, excluding the words not included in the word
count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1). This is a computer-
generated document created in Microsoft Word, using 14-point typeface for all
text, except for footnotes which are in 12-point typeface. In making this certificate
of compliance, I am relying on the word count provided by the software used to
prepare the document as well as a hand count of words contained in the charts
included in the brief.
/s/ Catherine B. Smith Catherine B. Smith *15 CERTIFICATE OF SERVICE The undersigned certifies that on May 14, 2015, the foregoing Sur-Reply of Appellee was served electronically on the following parties in accordance with the
requirements of the Texas Rules of Appellate Procedure:
Susan Desmarais Bonnen
susan.bonnen@texasattorneygeneral.gov
Philip Arnold
Ken Paxton
Charles E. Roy
James E. Davis
Randall K. Hill
P.O. Box 12548
Austin, Texas 78711-2548
Attorneys for Appellant
Via Electronic Service
/s/ Catherine B. Smith Catherine B. Smith US 3451667v.1
[1] The State’s engineer witness, Robert Scott Davis, testified in that same pre-trial hearing that TxDot made the decision to “leave [the nine driveways] restored.” 3 RR 71-72. The verb “restore” means (1) to give back (someone or something that was lost or taken); (2) to return (someone or something); (3) to put or bring (something) back into existence or use; (4) to return (something) to an earlier or original condition by repairing it, cleaning it, etc. See http://www.merriam-webster.com/dictionary/restore.