Susan Harrington and Kathleen Kilgore v. Lone Star NGL Pipeline, LP ( 2016 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00272-CV
SUSAN HARRINGTON AND KATHLEEN KILGORE, APPELLANTS
V.
LONE STAR NGL PIPELINE LP, APPELLEE
On Appeal from the 13th District Court
Navarro County, Texas
Trial Court No. 07-15890-CV, Honorable James Lagomarsino, Presiding
July 29, 2016
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellants Susan Harrington and Kathleen Kilgore sued Magellan Pipeline
Company, L.P., seeking a declaratory judgment and money damages, alleging
Magellan trespassed on their property by placing pipelines outside its easement.
Magellan filed a counterclaim seeking a declaration it had the right to lay the pipelines
under the existing easement. After several years of litigation, Harrington and Kilgore
joined appellee Lone Star NGL Pipeline, L.P. to their lawsuit, seeking a declaratory
judgment. By motion for summary judgment, Lone Star asserted the trial court lacked
subject-matter jurisdiction to adjudicate Harrington and Kilgore’s claim against it for
declaratory relief. The motion was granted and Harrington and Kilgore’s claim against
Lone Star was severed from their claims against Magellan. Harrington and Kilgore
appeal, and we will affirm the judgment.
Background1
The litigation involves a tract of some 100 acres in Navarro County, Texas. The
tract was owned for several generations by members of Harrington and Kilgore’s family.
It is traversed by a number of underground pipelines.
Harrington and Kilgore each inherited an undivided four percent interest in the
tract. They filed suit against Magellan in 2007. Their suit complains of pipelines
Magellan or its predecessor built across the 100-acre tract in 1999 and 2005. After suit
was filed, Magellan purchased the other ninety-two percent interest in the tract, and filed
amended pleadings for a partition. The partition was accomplished in kind, with the
result that Harrington and Kilgore each own five acres in the southwest corner of the
tract. No pipelines cross either of the five-acre tracts.
In 2011, the Waco Court of Appeals issued its opinion in a previous appeal,
brought by Harrington and Kilgore after the trial court rendered a summary judgment for
Magellan on its counterclaim for declaratory relief. The court held that the instruments
under which Magellan held its easement, those being a 1919 easement granted by H.
1
Because this is the review of a summary judgment, we take as true all evidence
favorable to the nonmovants, Harrington and Kilgore, and indulge every reasonable
inference and resolve any doubts in their favor. Kachina Pipeline Co. v. Lillis, 471
S.W.3d 445, 449 (Tex. 2015); State v. Ninety Thousand Two Hundred Thirty-Five
Dollars & No Cents in U.S. Currency, 390 S.W.3d 289, 292 (Tex. 2013).
2
P. Ross, Harrington and Kilgore’s great-grandfather, and a 1997 partial assignment of
the easement to Magellan’s predecessor, are ambiguous. The court therefore reversed
the summary judgment and remanded the cause to the trial court.2
In 2013, Harrington and Kilgore filed their amended pleadings adding Lone Star
as a defendant. They alleged Lone Star is the successor-in-interest to the assignor of
the 1997 partial assignment, and thus is the owner of easement rights not held by
Magellan. As noted, they sought only declaratory relief against Lone Star. In an
interrogatory response, they elaborated on their reason for making Lone Star a
defendant:
Lone Star NGL Pipeline Company is a necessary party to this suit
because the factfinder is being asked to determine its rights under the
easement. More specifically, this suit seeks to determine (i) where future
pipelines can be laid across the property under the easement’s multiple
line rights clause, and (ii) whether, after giving effect to the 1997 Partial
Assignment of the easement, Lone Star NGL Pipeline Company or
Magellan possesses the right to lay additional pipelines under the multiple
line rights clause . . . .
Lone Star’s traditional summary judgment motion acknowledged it and Magellan
each own easement rights that were granted under the 1919 easement and were
addressed in the 1997 partial assignment. Its summary judgment proof established it
owns two pipelines that cross the 100-acre tract.
In deposition testimony, Harrington acknowledged she does not claim any
wrongdoing by Lone Star. She believes the pipelines owned by Lone Star on the
property are within its easement and that Lone Star has the right to lay multiple lines
2
Harrington v. Magellan Pipeline Co., No 10-09-00131-CV, 2011 Tex. App.
LEXIS 9844 (Tex. App.—Waco Dec. 14, 2011, no pet.) (mem. op.). Additional
background facts may be found in the Waco court’s opinion.
3
under the 1919 easement. When asked why she joined Lone Star to the lawsuit
Harrington testified, “To help clarify if Lone Star actually is the one that owns the
multiple line rights that Magellan is claiming that they have instead.” Kilgore
acknowledged she has no complaints with the pipelines Lone Star owns on the land.
She agrees that Lone Star has the right to lay multiple lines on the property.
Lone Star’s summary judgment proof also includes its Vice President’s affidavit
confirming that the company “does not claim any easement rights over [Harrington’s
and Kilgore’s] two partitioned tracts, it does not own or maintain any pipelines on
[Harrington’s and Kilgore’s] two partitioned tracts, and it considers its easement on the
[property] to be fixed in place where its pipelines presently exist.”
Lone Star’s motion asserted the trial court lacked subject-matter jurisdiction over
the claim against it because, among other reasons, no justiciable controversy existed
between it and Harrington and Kilgore. The trial court granted the motion. Thereafter,
on Lone Star’s motion the trial court severed Harrington and Kilgore’s declaratory
judgment action against Lone Star from their case against Magellan.
Analysis
In their first issue, Harrington and Kilgore assert the trial court abused its
discretion by denying their unsworn motion to extend the deadline for responding to
Lone Star’s motion for summary judgment. TEX. R. CIV. P. 166a(c) (the nonmovant in a
summary judgment proceeding may file and serve opposing affidavits or other written
response no later than seven days prior to the scheduled date of the hearing).
Harrington and Kilgore’s response to Lone Star’s motion was filed within seven days of
4
the summary judgment hearing and was accompanied by a motion asking the trial court
to extend the deadline so that its otherwise untimely-filed response would be timely.
See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996) (explaining that
without an order granting leave, untimely filed summary judgment evidence is not before
the court). According to the motion, Harrington and Kilgore sought additional time
because their counsel “incorrectly calendared” the deadline to file a response. Lone
Star filed a written response opposing the requested extension of time. The court
denied Harrington and Kilgore’s motion for additional time.
Because the motion was unsworn and unaccompanied by an affidavit, it was
within the court’s discretion to deny it. See Ramsey v. Criswell, 850 S.W.2d 258, 259-
60 (Tex. App.—Texarkana 1993, no writ) (concerning withdrawal of deemed
admissions, the necessary good cause showing must be made by evidence); see
generally Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (per curiam) (“the
standards for withdrawing deemed admissions and for allowing a late summary-
judgment response are the same”).
Further, the evidence Harrington and Kilgore submitted with their late-filed
summary judgment response consisted of a copy of the Waco Court of Appeals’ 2011
opinion in the first appeal, a copy of a motion for summary judgment filed by Magellan
on December 8, 2008, and a copy of Magellan’s first amended answer and
counterclaim. Consideration of those documents would not have called for a different
ruling on Lone Star’s motion for summary judgment.
For those reasons, Harrington and Kilgore’s first issue is overruled.
5
By their second issue, Harrington and Kilgore challenge the propriety of the trial
court’s grant of summary judgment for Lone Star based on the absence of subject-
matter jurisdiction.
“A summary judgment motion challenging jurisdiction may challenge either the
pleadings or the existence of jurisdictional facts.” Montrose Mgmt. Dist. v. 1620
Hawthorne, Ltd., 435 S.W.3d 393, 402 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.
2004)). When a motion for summary judgment challenges jurisdictional facts, we
resolve the jurisdictional issue by considering relevant evidence filed by the parties. Id.
If the evidence raises a question of material fact on the jurisdictional issue, then
summary judgment on the jurisdictional challenge is improper and the question must be
resolved by the factfinder. Id. However, if the competent summary judgment evidence
is conclusive on the jurisdictional challenge, summary judgment is proper. Id. Evidence
is conclusive only if reasonable people could not differ in their conclusions. City of
Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). We review the trial court’s summary
judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003). When the trial court does not specify the ground for its ruling, the summary
judgment must be affirmed if any ground on which judgment was sought has merit.
Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S. Currency, 390
S.W.3d at 292.
6
The Uniform Declaratory Judgment Act (UDJA)3 functions remedially ‘“to settle
and to afford relief from uncertainty and insecurity with respect to rights, status, and
other legal relations.’” City of El Paso v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009)
(quoting TEX. CIV. PRAC. & REM. CODE § 37.002(b)). The purpose of a declaratory
judgment action is to establish existing rights, status, or other legal relations. Bonham
State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995); Republic Ins. Co. v. Davis, 856
S.W.2d 158, 164 (Tex. 1993). A declaratory judgment is appropriate only if there exists
a justiciable controversy about the rights and status of the parties and the declaration
will resolve the controversy. See Bonham State Bank, 907 S.W.2d at 467. The UDJA
does not provide the parties additional substantive rights, and does not expand the
court’s jurisdiction. Rush v. Barrios, 56 S.W.3d 88, 105 (Tex. App.—Houston [14th
Dist.] 2001, pet. denied). “The provisions of [the UDJA] authorizing the bringing of suit
for a declaratory judgment, do not in any way change the law as to jurisdiction of Texas
courts.” Connor v. Collins, 378 S.W.2d 133, 134 (Tex. Civ. App.—San Antonio 1964,
writ dism’d).
“To constitute a justiciable controversy, there must exist a real and substantial
controversy involving genuine conflict of tangible interests and not merely a theoretical
dispute.” Bexar-Medina-Atascosa Counties Water Control & Improvement Dist. No. 1 v.
Medina Lake Prot. Ass’n, 640 S.W.2d 778, 779-80 (Tex. App.—San Antonio 1982, writ
ref’d n.r.e.); see Phillips Petroleum Co. v. Bivins, 423 S.W.2d 340, 345 (Tex. Civ. App.—
Amarillo 1967, writ ref’d n.r.e.); Reuter v. Cordes-Hendreks Coiffures, Inc., 422 S.W.2d
193, 196 (Tex. Civ. App.—Houston [14th Dist.] 1967, no writ). A declaratory judgment
3
TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-.011 (West 2015).
7
capable of resolving a justiciable controversy must be distinguished from an advisory
opinion. Skalak v. Book, No. 03-11-00595-CV, 2012 Tex. App. LEXIS 8226, at *9 (Tex.
App.—Austin Sept. 26, 2012, no pet.) (mem. op.). A court lacks authority to render a
judgment that is merely advisory. Patterson v. Planned Parenthood of Houston & Se.
Tex, Inc., 971 S.W.2d 439, 443 (Tex. 1998). Thus the UDJA does not empower a court
to rule on hypothetical or contingent situations, or to determine questions not essential
to the decision of an actual controversy, even if future adjudication of the question may
be necessary. OHBA Corp. v. City of Carrollton, 203 S.W.3d 1, 6 (Tex. App.—Dallas
2006) (citing Firemen’s Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex. 1968)). In the
absence of a justiciable controversy, a case must be dismissed for want of subject-
matter jurisdiction. Skalak, 2012 Tex. App. LEXIS 8226, at *9.
The Waco Court of Appeals held the 1919 easement and the 1997 partial
assignment are each capable of more than one reasonable interpretation and are
therefore ambiguous. Harrington, 2011 Tex. App. LEXIS 9844, at *6, 9. As for the 1997
partial assignment, it found reasonable Harrington and Kilgore’s interpretation that the
assignment was only for the rights to a single pipeline, the Telescope pipeline, and all
other rights, including the right to lay multiple lines, were retained by the assignor. It
also found reasonable Magellan’s explanation that the assignor and assignee each
possess the “same broad easement rights under the 1919 Easement” including “the
right to lay multiple or additional pipelines.” 2011 Tex. App. LEXIS 9844, at *9. The
ambiguity of these instruments has not yet been judicially resolved.
But the trial court also had before it Lone Star’s express disclaimer of any
easement rights over the five-acre tracts partitioned to Harrington and Kilgore. As
8
noted, it is undisputed no pipelines currently cross those tracts.4 Harrington and Kilgore
allege no invasion or threatened invasion of their property rights by Lone Star. See
Caldwell v. City of Denton, 556 S.W.2d 107, 109 (Tex. Civ. App.—Fort Worth 1977, writ
ref’d n.r.e.) (observing in such circumstances there is no controversy to litigate, an
essential aspect of a suit for declaratory judgment). They testified to no complaints over
Lone Star’s existing pipelines or its conduct. The summary judgment record thus
negates any genuine conflict of tangible interests between Harrington and Kilgore and
Lone Star.5 See Bexar-Medina-Atascosa, 640 S.W.2d at 779-80; Phillips Petroleum,
423 S.W.2d at 344 (declarations that, inter alia, leases lacked pooling provisions
improper because lessee agreed it had no contractual pooling rights).
In this case the summary judgment evidence is conclusive that Harrington and
Kilgore’s declaratory judgment claim against Lone Star does not seek resolution of an
existing justiciable controversy. Montrose Mgmt. Dist., 435 S.W.3d at 402. In view of
Lone Star’s express disclaimer of any easement rights over land owned by Harrington
and Kilgore, any declaration regarding such rights would merely be advisory. See
Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex. 2004) (in declaratory judgment
action by lot owners, trial court lacked subject-matter jurisdiction to declare rights as to
two subdivisions; any opinion as to those subdivisions would be advisory).
4
All existing pipelines underlying the 100-acre tract are on land owned since
2007 by Magellan. As noted, Harrington and Kilgore’s trespass claims relate to
pipelines Magellan or its predecessor constructed in 1999 and 2005.
5
Nor does the record reflect any actual conflict between Lone Star and Magellan
concerning easement rights.
9
The trial court did not err in its grant of summary judgment for Lone Star because
of a lack of subject-matter jurisdiction. Harrington and Kilgore’s second issue is
overruled.
Through their final three issues, Harrington and Kilgore assert the trial court erred
in granting summary judgment because joinder of Lone Star to their suit against
Magellan is required by the UDJA and Texas Rule of Civil Procedure 39, and assert the
trial court abused its discretion by severing their declaratory judgment action against
Lone Star from their suit against Magellan. Because of our conclusion the trial court
lacked jurisdiction over their claim against Lone Star, our analysis of the joinder and
severance questions are not necessary to disposition of the appeal. TEX. R. APP. P.
47.1.6
6
Lone Star’s motion for summary judgment was based solely on jurisdictional
grounds and did not address Rule of Civil Procedure 39 or application of Texas Civil
Practice and Remedies Code section 37.006(a). TEX. CIV. PRAC. & REM. CODE ANN. §
37.006(a) (stating in part that when declaratory relief is sought, “all persons who have or
claim any interest that would be affected by the declaration must be made parties”);
TEX. R. CIV. P. 39. We perceive no reason why Lone Star’s absence from the suit
prevents the trial court from granting complete relief in the controversy between
Harrington and Kilgore and Magellan. And, because of Lone Star’s express disclaimer
of easement rights over Harrington and Kilgore’s tracts, we see no risk their tracts could
be burdened by greater or inconsistent easement rights by virtue of resolution of their
dispute with Magellan.
As to the severance issue, even an improper severance would not have deprived
this court of jurisdiction over the appeal. Rucker v. Bank One Texas, N.A., 36 S.W.3d
649, 652 (Tex. App.—Waco 2000, pet. denied); see Pierce v. Reynolds, 160 Tex. 198,
329 S.W.2d 76, 79 n.1 (1959); Bird v. Lubricants, USA, LP, No. 02-06-00061-CV, 2007
Tex. App. LEXIS 7110, at *7-9 (Tex. App.—Fort Worth August 31, 2007, pet. denied)
(mem. op.); see also Brown v. Todd, 53 S.W.3d 297, 300 (Tex. 2001) (“After the trial
court dismissed [appellant’s] claim for lack of standing, he could have sought a
severance so that the dismissal against him would have been an appealable final
judgment”).
10
Conclusion
Having overruled each of Harrington and Kilgore’s issues for which review was
necessary, we affirm the judgment of the trial court. TEX. R. APP. P. 43.2(a).
James T. Campbell
Justice
11