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Reversed and Rendered in Part and=20 Remanded in Part and = Opinion=20 filed October 23, 2007.

 

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-05-01181-CV

____________

 

SOUTHTEX=20 66 PIPELINE COMPANY, LTD., Appellant

 

V.

 

JOHN SPOOR, SUSAN = LYNN SPOOR,=20 AND CLAUDINE SPOOR, INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF = THE=20 ESTATE OF DONALD EUGENE SPOOR, DECEASED, Appellees

 

 

On Appeal from the = County Court at Law No. 3 and Probate = Court

Brazoria County, = Texas

Trial Court Cause = No. CI029587B

 

 

O P I N I=20 O N

This case involves = land=20 originally condemned by WesTTex Pipeline Company for an easement = to build=20 a 12-inch oil and gas pipeline.  Several years later, WesTTex = discontinued its use of the pipeline and leased it to SouthTex 66 = Pipeline=20 Company.  John Spoor, Susan Lynn Spoor, and Claudine Spoor,=20 individually and as independent executrix of the estate of Donald = Eugene=20 Spoor, deceased, sued SouthTex, claiming that (1) SouthTex was = trespassing=20 on their property and (2) WesTTex could not lease the pipeline to=20 SouthTex.  Both parties brought declaratory judgment actions = on their=20 respective claims.  The trial court severed the trespass = claim until=20 the resolution of this appeal, but entered a judgment in favor of = the=20 Spoors, declaring that SouthTex could not use the pipeline and = could not=20 have acquired an interest in operating the pipeline from=20 WesTTex.

Concluding that = WesTTex validly=20 assigned its right to use the pipeline to SouthTex via the lease=20 agreement, and concluding that evidence the Spoors attached to = their=20 summary judgment motion to show that SouthTex is not currently a = common=20 carrier was conclusory and inadmissible hearsay, we reverse the = judgment=20 of the trial court and render judgment in favor of = SouthTex.

A.     =20 Statement of Facts and Procedural History

WesTTex acquired an = easement by=20 condemnation for a 12-inch common carrier pipeline (the = APipeline@) through property = owned by the=20 Spoors.  In its AStatement of WesTTex = 66=20 Pipeline Co.@ (the AStatement@), explaining its = need to build=20 a pipeline over the Spoors=3Ds property, WesTTex = noted that=20 the easement was a public necessity and that the pipeline and any=20 replacement pipeline would be used as a common carrier pipeline=20 transporting crude oil and refined petroleum products.  The = court=20 held that WesTTex could immediately use and occupy the easement = for=20 Aconstructing, = maintaining, and=20 operating@ the Pipeline.  = The court=20 further ordered that a Writ of Possession should issue in favor of = WesTTex=20 and against the Spoors to enable WesTTex to exercise the rights = just=20 mentioned as well as the rights described in WesTTex=3Ds Statement on file = with the=20 court.  The Statement declared, among other things, the=20 following:

$           = ;       =20 AWesTTex is a common carrier in the = pipeline=20 business in . . . Texas for the transportation of oil products by = pipeline=20 to or for the public for hire.@

$           = ;       =20 AWesTTex has declared by resolution that = public=20 convenience and necessity require, and . . . it is . . . in the = public=20 interest for WesTTex to take and acquire by condemnation, an = unobstructed=20 permanent easement and right of way. . . through and across [the=20 Spoors=3Ds property].@

$           = ;       =20 AAcquisition of the = Easement . .=20 . is a public necessity. . . . The pipeline and any replacement = pipeline=20 will be utilized by WesTTEx, and its successors and assigns, as a = common=20 carrier pipeline transporting crude oil and refined petroleum = products . .=20 . .@

Thus, = WesTTex=3Ds Statement = contemplated the=20 potential assignment of the easement and pipeline to other common=20 carriers.  Through a Pipeline Lease Agreement (the = ALease = Agreement@) dated June 15, = 2000, WesTTex=20 assigned several rights to SouthTex for a renewable five-year = term,=20 including (a) the right to operate the Pipeline as a common = carrier=20 pipeline, and (b) the property rights WesTTex had acquired and = would=20 acquire through the condemnation order. 

When the Spoors = learned of the=20 Lease Agreement, they filed suit alleging trespass by SouthTex, = arguing=20 that rights to a condemned easement cannot be leased, and that = SouthTex is=20 not a common carrier pipeline company.  The trial court = granted the=20 Spoors=3Ds no-evidence and = traditional=20 motions for partial summary judgment, and denied = SouthTex=3Ds no-evidence and = traditional=20 motions for summary judgment as well as SouthTex=3Ds objections to = affidavits and=20 several exhibits filed in support of the Spoors=3Ds traditional motion = for=20 summary judgment.[1] =

B.     =20 Standard of Review

We review the trial=20 court=3Ds summary judgment de = novo.  Provident Life & Accident Ins. Co. v. = Knott, 128=20 S.W.3d 211, 215 (Tex. 2003).  When both parties move for = summary=20 judgment on the same issues and the trial court grants one motion = and=20 denies the other, as here, the reviewing court considers the = summary=20 judgment evidence presented by both sides, determines all = questions=20 presented, and if the reviewing court determines that the trial = court=20 erred, renders the judgment the trial court should have = rendered. =20 Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. = 2005).  To prevail on a motion for summary judgment, the = movant must=20 establish that there is no genuine issue as to any material fact = and he is=20 entitled to judgment as a matter of law.  Tex. R. Civ. P. = 166a(c). =20 When reviewing a summary judgment, we take as true all evidence = favorable=20 to the nonmovant, indulge every reasonable inference, and resolve = any=20 doubts in his favor.  Valence Operating Co., 164 S.W. = 3d at=20 661.

C.     =20 Resolution of the Issues

1.      =20 The Adequacy of the Affidavit.

First, we will = address=20 SouthTex=3Ds fifth issue because = it=20 impacts our determination of the other issues.  SouthTex = claims the=20 trial court erred in overruling its objections to the affidavit of = the=20 Spoors=3D attorney, William D. = Noel, and=20 to the attached exhibits numbered 1, 2, 3, 4, and 6.  As we = explain=20 in more detail below, we agree that the trial court erred in = overruling=20 the objections.

a.      =20 The Law Relating to Affidavits.

Affidavits=20 Ashall be=20 made on personal knowledge, shall set forth such facts as would be = admissible in evidence, and shall show affirmatively that the = affiant is=20 competent to testify to the matters stated therein.@ =20 Tex. R. Civ. P.=20 166a(f).  To avoid being conclusory, an affidavit must = contain=20 specific factual bases, admissible in evidence and upon which = conclusions=20 are drawn.  Nichols v. Lightle, 153 S.W.3d 563, 570 = (Tex.=20 App.CAmarillo=20 2004, pet. denied).  Merely reciting that an affidavit is = made on=20 personal knowledge is insufficient.  See Humphreys v.=20 Caldwell, 888 S.W.2d 469, 470 (Tex. 1994).  Instead, the=20 affidavit must go further and disclose the basis on which the = affiant has=20 personal knowledge of the facts asserted.  Radio Station = KSCS v.=20 Jennings, 750 S.W.2d 760, 762 (Tex. 1988).  Statements = made in=20 the affidavit need factual specificity such as time, place, and = the exact=20 nature of the alleged facts. Brownlee v. Brownlee, 665 = S.W.2d 111,=20 112 (Tex. 1984).  A=20 person=3Ds position=20 or job responsibilities can peculiarly qualify him to have = personal=20 knowledge of facts and establish how he learned of the = facts. =20 First Nat=3Dl Bank in=20 Munday v. Lubbock Feeders, L.P., 183=20 S.W.3d 875, 881 (Tex. App.CEastland=20 2006, pet. denied).

SouthTex=20 objected to the affidavit by Noel in part because it claimed that = Noel is=20 disqualified under Rule 3.08 of the Texas Disciplinary Rules of=20 Professional Conduct, and claimed that he lacked personal = knowledge of the=20 facts and statements to which he testified.  SouthTex also = objected=20 to the affidavit for including statements which are conclusory, or = that=20 call for a legal conclusion or opinion.[2] =20 Subject to certain specified exceptions, Rule 3.08 of the Texas=20 Disciplinary Rules of Professional Conduct prohibits an attorney = from=20 appearing as both witness and counsel. Tex. Disciplinary R.=20 Prof=3Dl=20 Conduct = 3.08.  If the Alawyer=3Ds=20 testimony concerns a controversial or contested matter, combining = the=20 roles of advocate and witness can unfairly prejudice the opposing=20 party.@ = Id. at cmt. 4.  The appearance of a testifying = advocate tends=20 to cast doubt on the ethics and propriety of the judicial = system. =20 Aghili v. Banks, 63 S.W.3d 812, 818 (Tex. App.CHouston=20 [14th Dist.] 2001, pet. denied) (op. on reh=3Dg). =20 When, as here, an attorney who represents a party is an affiant in = support=20 of a motion for summary judgment, he is a witness. See Mauze v. = Curry, 861 S.W.2d 869, 870 (Tex. 1993).  Moreover,=20 Noel=3Ds=20 testimony did not fall within any of the five exceptions = enumerated in=20 Rule 3.08(a).[3] =20 SouthTex=3Ds status=20 with the Railroad Commission was a contested matter that formed a = basis=20 for the Spoors=3Ds suit for=20 trespass.  The Spoors had the burden of proving trespass as a = matter=20 of law.  They used Noel=3Ds=20 affidavit to interpret the Railroad Commission=3Ds=20 paperwork.  As counsel for the Spoors, Noel is an = inappropriate=20 person to present any facts as to this question.  But, even = if the=20 trial court determined one of the Rule 3.08 exceptions applied to = Noel,=20 the affidavit still would fail if it contained hearsay and = conclusory=20 remarks and failed to prove Noel=3Ds personal=20 knowledge.

b.      =20 The Affidavit Contained Inadmissible Hearsay, Was Conclusory, and = Failed=20 to Prove Noel=3Ds Personal=20 Knowledge of Facts Stated Therein.

First, the=20 affidavit failed to prove Noel=3Ds personal=20 knowledge of the facts contained in the affidavit.  When = confronted=20 with an objection due to lack of personal knowledge, Noel = responded with a=20 revised affidavit, explaining how he actually traveled to = Austin.  He=20 also made a few small word changes in his statements, in an = attempt to=20 make the statements less of a legal conclusion.  Noel misses = the=20 point of personal knowledge.  The fact that Noel traveled to = Austin=20 personally to pick up two certified copies of printouts from the = Railroad=20 Commission is irrelevant.  Exhibit 5, which appears to be a=20 AMaster=20 Inquiry@ = printout,=20 is not self-explanatory, and needs interpretation by an official = of the=20 Railroad Commission with a job that would Apeculiarly=20 qualify@ = that=20 person to have personal knowledge of the facts contained in the=20 document.  However, Noel=3Ds opinion=20 of what this printout means as to the question of = SouthTex=3Ds status=20 as a common carrier fails to prove he has personal knowledge of = the=20 information in the printout and is conclusory and therefore = amounts to no=20 evidence. See Geiselman v. Cramer Fin. Group, Inc., 965 = S.W.2d 532,=20 537 (Tex. App.BBHouston=20 [14th Dist.] 1997, no writ) (concluding that an affidavit not = based upon=20 the personal knowledge of the affiant amounts to no evidence of = the=20 matters stated therein); Smedvig Asia, Ltd. v. Diaz, No.=20 01-99-01107-CV, 2000 WL 351792, at *5 (Tex. App.BBHouston=20 [1st Dist.] Apr. 6, 2000, no pet.) (not designated for = publication)=20 (concluding that an affidavit that contains conclusory statements = and=20 fails to show the basis on which the affiant had personal = knowledge of the=20 facts stated therein is no evidence of those facts).  Nothing = in the=20 affidavit shows that Noel is qualified to explain the contents of = the=20 document.  See Tex. R. Evid. = 602.  What=20 AP-5=20 Status: Inactive@ = means to=20 the Railroad Commission must be explained by a Railroad Commission = official or someone who has proven that he knows what it means.[4] =20 Noel=3Ds=20 reference to unnamed employees, such as file clerks, who = Aassisted@ = Noel in=20 reviewing the document does not correct the fatal flaws in his = affidavit=20 and is inadmissible as hearsay.  See Tex. R. Evid. = 801(d).

In=20 paragraphs seven and eight of his original and revised affidavits, = Noel=20 states legal conclusions and opinions as to the current status of = SouthTex=20 with the Railroad Commission.  Again, without any underlying=20 information to show that Noel is qualified to address this issue,=20 Noel=3Ds=20 statements amount to no evidence.  See Estate of Gajewsky = v. John=20 Hancock Life Ins. Co., No.14-04-00748-CV, 2005 WL 1017628, at = *3 (Tex.=20 App.BBHouston=20 [14th Dist.] May 3, 2005, no pet.) (mem. op.) (holding that an = affidavit=20 comprised entirely of legally and factually conclusory statements = that=20 contains no attempt to show a basis for those conclusions in the = personal=20 knowledge of the affiant amounts to no evidence capable of = defeating=20 summary judgment).  In addition, a legal conclusion in an = affidavit=20 is insufficient to raise an issue of fact in response to a motion = for=20 summary judgment or to establish the existence of a fact in = support of a=20 motion for summary judgment. Mercer v. Daoran Corp., 676 = S.W.2d=20 580, 583B84 (Tex.=20 1984).

Concerning=20 exhibits 1, 2, 3, and 4, we do not address the hearsay objection = because=20 these exhibits are not relevant to the resolution of the issues = before us,=20 even if they fall under a hearsay exception. See Tex. R. Evid. 401.[5] =20 Exhibit 6 contains an affidavit from one of the attorneys in = Orange=20 County, Inc. v. Citgo Pipeline, Co., 934 S.W.2d 472 (Tex.=20 App.CBeaumont 1996, writ=20 denied).  Exhibit 6=20 contains the same information that is found in the Orange = County=20 opinion and has no bearing on the issues before us and, therefore, = is not=20 relevant.  Tex. R. = Evid.=20 401.

In short,=20 based on the reasons stated above, we conclude that paragraphs = seven and=20 eight of Noel=3Ds=20 affidavit are insufficient to satisfy Tex. R. Civ. P. 166a(f) = for use=20 as evidence, and exhibits 1, 2, 3, 4, and 6, are irrelevant.  = Thus,=20 we sustain SouthTex=3Ds fifth=20 issue, and we will not consider paragraphs seven and eight of the=20 affidavit or the exhibits in determining the issues.         =20

2.      =20 WesTTex Could and Did Assign the Condemned Easement to=20 SouthTex.

SouthTex argues that = its use of=20 the easement and pipeline is authorized by the lease agreement and = is=20 consistent with the rights being acquired by WestTex through=20 condemnation.  The Spoors contend WesTTex is not authorized = to=20 partially transfer its rights by lease and, therefore, SouthTex is = trespassing.  The Spoors also argue that SouthTex cannot = lease the=20 pipeline because SouthTex is not a common carrier pipeline=20 company.

a.      =20 Pipeline Easements are Assignable.

Pipeline easements = are=20 assignable in Texas.  Valero Eastex Pipeline Co. v. = Jarvis, 990 S.W.2d 852, 855 (Tex. App.CTyler 1999, pet. = denied)=20 (citing Orange County, Inc., 934 S.W.2d at 475).  With = respect=20 to partial assignments of such an easement, the more modern view = in=20 commercial easements is that such an easement is partially = alienable when=20 it does not burden the underlying land beyond what was = contemplated in the=20 original easement grant.  Orange County, Inc., 934 = S.W.2d at=20 475 (citing Alan David Hegi, The Easement in Gross Revisited:=20 Transferability and Divisibility Since 1945, 39 Vand.L.Rev. 109, = 130B31 (1986); Restatement of Property = ' 493 (1944)).  = Texas=20 follows this modern view. Id.  Although easements = Ain gross@ are personal to the = grantee=20 only, and are generally not assignable or transferable, the = parties may=20 create an assignable easement in gross through an express = assignment=20 provision.  Farmer=3Ds Marine Copper = Works, Inc. v.=20 City of Galveston, 757 S.W.2d 148, 151 = (Tex.=20 App.CHouston [1st Dist.] = 1988, no=20 writ); Engelbretson v. Hyder, No. = 10‑02‑00320‑CV, 2005 WL=20 168838, at *1 (Tex. App.CWaco Jan.=20 26, 2005, pet. denied) (mem. op.).  Thus, without = something=20 specific in the record to show that this easement could not be = assigned,=20 Texas law would allow it.  We have not found any evidence or = fact in=20 the record to make the easement unassignable.  In fact, we = have found=20 just the opposite.

Not only are = commercial=20 easements generally assignable, this specific easement was=20 assignable.  The order of the court granting a Writ of = Possession to=20 WesTTex incorporated by reference the Statement submitted by = WesTTex in=20 the condemnation proceeding.  The Statement provided that the = easement and Pipeline would be Autilized by WesTTex, = and its=20 successors and assigns, as a common carrier pipeline . . . = .@  Thus, the = order by the=20 court granting the easement incorporated language making the = easement=20 assignable by WesTTex, as long as the Pipeline is utilized as a = common=20 carrier pipeline.  See Strauch v. Coastal States Crude = Gathering=20 Co., 424 S.W.2d 677, 683 (Tex. Civ. App.CCorpus Christi 1968, = writ=20 dism=3Dd) (holding rights = were made=20 specifically assignable by language in grant providing terms shall = be=20 binding on Asuccessors and=20 assigns@).  Both sides = agree the=20 Pipeline is being used as a common carrier pipeline in accordance = with the=20 condemnation order.

b.      =20 SouthTex=3Ds Use Did=20 Not Impose a Greater or Different Burden on the = Lease.

The Spoors do not = argue that=20 the lease subjects the property to a greater burden than granted = by the=20 Writ of Possession and condemnation proceedings.  They argue = that (1)=20 only they can authorize SouthTex to use the land, (2) there is no = evidence=20 that WesTTex has the legal right or power to lease the Pipeline to = SouthTex, and (3) there is no evidence that SouthTex has the = ability to=20 acquire the right to use and occupy the Pipeline and property from = WesTTex.  We will address the last two questions; by = answering them,=20 the first will also be answered.  First, the Spoors claim = that=20 Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S.W. 453 = (1890),=20 controls and, according to Calcasieu, rights in a = condemned=20 easement cannot be leased to others.  However, they = misinterpret=20 Calcasieu.

Calcasieu concerned two = statutes. 13=20 S.W. at 454.  First, a statute allowed railroads to condemn = easements=20 and right-of-ways on which to build their tracks.  = Id. =20 Second, a different statute allowed railroads to own land in fee = simple on=20 which their tracks were built.  Id.  In the = second=20 instance, the Court found the railroad would have all the rights = in=20 ownership to use the land in any manner not hurtful to others, = which=20 included leasing the land to derive a profit from it. =20 Id.  The Court stated, ANo such rights, = however, exist=20 as to a right of way acquired by condemnation, or by a conveyance = made by=20 the owner which only conveys an easement.@  = Id.  The=20 Spoors=3D reliance on this = isolated=20 sentence is misplaced.  The right the Court referred to was = not the=20 right to lease per se, but the right to lease in order to make a = profit=20 independent from the use anticipated by the condemnation.  = The Court=20 went on to explain in the following manner:

Where property is = taken for a=20 public use the owner is not divested of any right further than is=20 necessary for the public purpose; hence the statute to which we = have=20 referred announces the rule of law that the title acquired through = compulsory takings for public use >shall not be so = construed as to=20 include the fee-simple estate in lands.=3D. . . This being the = reason for=20 the exercise of such a power, it requires no argument to prove = that after=20 the right has been exercised the use of the property must be = held in=20 accordance with and for the purposes which justified its = taking;=20 otherwise, it would be a fraud on the owner, and an abuse of = power. . . .=20 They were not empowered to use the exclusive right of way granted = to each=20 for any other independent purpose than that for which it = was=20 granted.  The fee remained in the private owner, and, = outside=20 of the authorized use, which must be public, or incidental = to the=20 public use, the proprietary right is in the original = owner.

Id. at 454B55 (citation omitted) = (emphasis=20 added).  The Court=3Ds prohibition = concerned any=20 lease that would be made on a condemned easement for an = independent use=20 not contemplated by the condemnation.  The examples = given=20 included the building of stores, taverns, or other businesses that = fell=20 outside the authorized public use or a use incidental to railroad=20 business.  Id. at 454.

This appeal does not = involve a=20 use falling outside the use authorized by the condemnation=20 proceedings.  The use of the Pipeline is the same as the = purpose that=20 justified the taking and the same as the authorized use = contemplated by=20 the condemnation: the transportation of crude oil and refined = petroleum=20 products by a common carrier.  Thus, because the lease does = not=20 divest the property owner of any additional rights or expand the = burden on=20 the property, SouthTex=3Ds acquisition of the = use of the=20 Pipeline from WesTTex is acceptable under = Calcasieu.

c.      =20 The Lease Was a Valid Assignment.

The Spoors next = contend that=20 rights acquired through condemnation cannot be Aassigned@ through a lease, = only through=20 an Aassignment,@ and cite = Southwestern Bell=20 Telephone Co. v. Texas & New Orleans Railway Co., 125 F.2d = 699=20 (5th Cir. 1942), in support of their argument.  In essence, = their=20 claim is that a lease is not an assignment.  Our research = does not=20 support their position.

ALease@ is defined as = A[a] contract by which = a=20 rightful possessor of real property conveys the right to = use and=20 occupy the property in exchange for consideration, usu. = rent.@  Black=3Ds=20 Law Dictionary 907=20 (8th ed. 2004) (emphasis added).  AConvey@ is defined as = A[t]o transfer or = deliver=20 (something, such as a right or property) to another, esp. by deed = or=20 other writing.@  Id. at = 357=20 (emphasis added).  The definition of transfer addresses our = issue=20 exactly.  ATransfer@ is defined = as:

Any mode of disposing of = or=20 parting with an asset or an interest in an asset, including a = gift, the=20 payment of money, release, lease, or creation of a lien or = other=20 encumbrance.  The term embraces every method B direct or indirect, = absolute=20 or conditional, voluntary or involuntary B of disposing of or = parting=20 with property or an interest in property . . . .

Id. at 1535 (emphasis=20 added).  And lastly, Aassignment@ is defined as = A[t]he transfer of = rights or=20 property.@ Id. at = 128.  Here,=20 WesTTex transferred its rights by lease, conveying those rights to = its=20 assigns.  The fact that the rights concerned a condemned = pipeline=20 easement, and were transferred by a lease, does not make the = conveyance=20 ineffective.

In addition, in = Hubenak v.=20 San Jacinto Gas Transmission Co., the Texas Supreme Court = anticipated=20 a transfer or conveyance of condemned easements, other than an = all-out=20 sale, to other carriers operating pipelines as long as the = pipeline is=20 operated in a manner the condemnation contemplated. 141 S.W.3d = 172, 191=20 (Tex. 2004).  Writing for the majority, Justice Owen stated,=20 AWith regard to = assignments of=20 easements, an easement for a pipeline obtained by a common carrier = in an=20 eminent domain proceeding could, at a minimum, be = transferred,=20 sold, or conveyed to another common carrier to operate = a=20 pipeline as a common carrier without an explicit request = for such a=20 right in the condemnation petition.@ Id. (emphasis = added).  Thus, the Court anticipated other transfers such as = the one=20 WesTTex executed with SouthTex.

As with = Calcasieu, the=20 Spoors have misconstrued another case on which they have placed = heavy=20 reliance.  In Southwestern Bell Telephone Co., the=20 condemnation judgments explicitly allowed only ASouthwestern = Telephone and=20 Telegraph Co. and its successor, Southwestern Bell Telephone=20 Co.@ to occupy the = easement for=20 their business. 125 F.2d at 700.  The judgments did not allow = a third=20 company to add an additional burden to the easement through a = lease. =20 Id.  As we have already stated, the present case does = not=20 involve the imposition of an additional burden on the condemned=20 estate.  Nor does it involve a condemnation order that = authorized=20 only one specifically listed company to use the = easement.

3.        =20 The Spoors=20 Failed to Rebut SouthTex=3Ds Proof=20 That it is a Common Carrier.

Finally, the Spoors = argue that=20 SouthTex is not a common carrier.  They rely on the affidavit = of=20 their attorney, Noel, to support this claim.  As we have = already=20 held, Noel=3Ds affidavit = constitutes no=20 evidence, and much of the affidavit, as well as all of the = printout from=20 the Railroad Commission, contains inadmissable hearsay.  = Therefore,=20 the Spoors have not rebutted the evidence SouthTex attached to its = motion=20 for summary judgment showing that it is a common carrier, that its = partners are common carriers, and that the Pipeline is being = operated for=20 the same reasons stated in the condemnation=20 proceedings.

Conclusion

For the foregoing reasons, we reverse = the trial=20 court=3Ds judgment, which granted the = Spoors=3D motions for summary judgment, and = render judgment=20 that the Spoors take nothing on their claim for declaratory = relief. =20 We reverse the trial court=3Ds denial of SouthTex=3Ds motions for summary judgment, and we = remand the=20 case to the trial court for proceedings consistent with this = opinion,=20 including entering a declaration that WesTTex was authorized to = grant and=20 convey to SouthTex the property rights it acquired through = condemnation=20 and that, through the Lease Agreement, SouthTex acquired those = rights and=20 has a legal right to occupy and use the easement for the operation = of a=20 common carrier pipeline in accordance with the order granting the = Writ of=20 Possession.

 

 

/s/     =20 Wanda McKee Fowler

Justice

 

 

 

 

Judgment=20 rendered and Memorandum Opinion/Opinion filed October 23, = 2007.

Panel=20 consists of Justices Yates, Anderson, and Fowler.


[1]  The Spoors also attached this = evidence to=20 their no-evidence summary judgment motion, but we have not = considered the=20 evidence in conjunction with that motion, as Rule 166a(i) = contemplates=20 that no evidence will be attached to this type of motion. See = Tex. R. Civ. P. 166a(i) = (AAfter an adequate time for discovery, a = party=20 without presenting summary judgment evidence may move for = summary=20 judgment on the ground that there is no evidence of one or more = essential=20 elements of a claim or defense . . . .@) (emphasis added); see also = City of=20 Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005) (noting that = Rule=20 166a(i) does not allow the filing of a no-evidence motion for = summary=20 judgment with supporting evidence); Binur v. Jacobo, 135 = S.W.3d=20 646, 650B51 (Tex. 2004) (stating the general rule = that=20 Aif a motion brought solely under [Rule = 166a](i)=20 attaches evidence, that evidence should not be considered unless = it=20 creates a fact question@).

[2]  Specifically, SouthTex objected = to=20 paragraphs 7 and 8 in the original affidavit, and paragraphs 7 and = 8 in=20 the revised affidavit.  Those paragraphs stated the=20 following:

 

[original] 7.  Attached to this = affidavit=20 marked as Exhibit 5 is an original certified copy of a document I = obtained=20 from the Railroad Commission of Texas documenting that SouthTex 66 = Pipeline Company, Ltd. has not filed a P-5 form of financial=20 responsibility since September 21, 2001, and that as a result = SouthTex 66=20 Pipeline Company, Ltd. is inactive as far as the Railroad = Commission of=20 Texas is concerned.

 

[original] 8.  While I was at the = Railroad=20 Commission of Texas, I reviewed the records of the Railroad = Commission of=20 Texas with the assistance of personnel of the Railroad Commission = of Texas=20 and determined that by October 31, 2003, SouthTex 66 Pipeline = Company,=20 Ltd. had transferred all of its permits to operate a pipeline in = Texas to=20 other entities.

 

[revised] 7.  On August 4, 2005, I = personally=20 traveled to Austin, Texas to personally review the records at the = Railroad=20 Commission of Texas.  Attached to this Affidavit marked as = Exhibit 8=20 is a copy of the receipt for the aviation fuel purchased at the = Signature=20 Flight fixed base operator for the Cessna 310 Q airplane with tail = Number=20 713MF that I was a passenger in on the trip from Houston to Austin = and=20 back that day.  Attached to this Affidavit marked as Exhibit = 9 is a=20 true and correct copy of the portion of my Visa bill for the month = of=20 August 2005 reflecting the charge for the aviation fuel purchased = at the=20 Signature Flight fixed based operator for the Cessna 310 Q = airplane with=20 tail Number 713MF that I was a passenger in on the trip from = Houston to=20 Austin and back that day.  Attached to this Affidavit marked = as=20 Exhibit 5 is a true and correct copy of an original certified copy = of a=20 document I obtained from the Railroad Commission of Texas on = August 4,=20 2005, which reflects that SouthTex 66 Pipeline Company, Ltd. has = not filed=20 a P-5 form of financial responsibility with the Railroad = Commission of=20 Texas since September 21, 2001.  Attached to this Affidavit = marked as=20 Exhibit 10 is the original receipt from the Railroad Commission of = Texas=20 for my personal payment of $1.10 cash for the certified copy of = the=20 Railroad Commission of Texas that I obtained on August 4, 2005,a = true and=20 correct copy of which is attached as Exhibit 5

hereto.

 

[revised] 8.  While I was at the = Railroad=20 Commission of Texas, I reviewed the records of the Railroad = Commission of=20 Texas with the assistance of personnel of the Railroad Commission = of Texas=20 and observed that according to the Railroad Commission of Texas, = SouthTex=20 66 Pipeline Company, Ltd. has not had a permit to operate a = pipeline in=20 Texas since November 1, 2003.

[3]  Rule 3.08(a) provides:

 

(a) A lawyer shall not accept or = continue=20 employment as an advocate before a tribunal in a contemplated or = pending=20 adjudicatory proceeding if the lawyer knows or believes that the = lawyer is=20 or may be a witness necessary to establish an essential fact on = behalf of=20 the lawyer=3Ds client, unless:

(1) the testimony relates to an = uncontested=20 issue;

(2) the testimony will relate solely to = a matter=20 of formality and there is no reason to believe that substantial = evidence=20 will be offered in opposition to the testimony;

(3) the testimony relates to the nature = and value=20 of legal services rendered in the case;

(4) the lawyer is a party to the action = and is=20 appearing pro se;

(5) the lawyer has promptly notified = opposing=20 counsel that the lawyer expects to testify in the matter and=20 disqualification of the lawyer would work substantial hardship on = the=20 client.

 

Tex.=20 Disciplinary R. Prof=3Dl=20 Conduct=20 3.08(a).

[4]  In addition, at least one other = question=20 remains unanswered regarding the document; it pertains to the last = line on=20 the printout: A****Remarks exist for this = organization.  Hit=20 PF1 to go to >Remarks Inquiry.=3D@  No subsequent comment or = additional=20 printout exists in the record to show this information; therefore, = the=20 printout appears to be an incomplete record with perhaps vital = information=20 missing.

[5]  The exhibits attached to = Noel=3Ds affidavit, which was attached to=20 Plaintiff=3Ds Response to SouthTex=3Ds Motions for Summary Judgment, are as = follows:=20 (Ex. 1) copy of the Board Action by WestTex; (Ex. 2) copy of the=20 WestTex=3Ds Board of Directors resolution; (Ex. 3) = copy of=20 in-house approval to build pipeline; (Ex. 4) paper concerning = McBeth=20 pipeline; (Ex. 5) master inquiry from the Railroad=20 = Commission.

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