Affirmed as Modified and Memorandum Opinion =
filed June 12,=20
2008.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-07-00868-CV
____________
ROBERT=20
WARD,=20
Appellant
V.
NORTHAMPTON=20
MUNICIPAL UTILITY DISTRICT, =
Appellee
On Appeal from the =
County Civil Court at Law No. 4
Harris County, =
Texas
Trial Court Cause =
No. 816194
M E M O R=20
A N D U M O P I N I O N
Ward appeals from a =
judgment=20
awarding him $23,000 for the acquisition of easements on his =
property by=20
the Northampton Municipal Utility District (Athe =
District@). In four =
issues, Ward=20
argues that the trial court erred in (1) failing to include all =
the terms=20
of the settlement agreement in the final judgment, (2) finding =
that Ward=20
acknowledged receipt of payment from the District, and (3) =
granting=20
partial summary judgment.
Background
On April 20, 2004, =
the District=20
offered Ward $4,420 as compensation for a drainage easement and a =
sanitary=20
sewer easement that would run across Ward=3Ds property. In =
response=20
to Ward=3Ds rejection of the=20
District=3Ds offer, the District =
filed a=20
petition in condemnation pursuant to chapter 21 of the Property=20
Code. See Tex. Prop.=20
Code Ann. ' 21.012(a) (Vernon =
2004). =20
The trial court appointed special commissioners who awarded Ward=20
$4,420. Ward objected to the special commissioners award =
vesting the=20
county court with jurisdiction over the dispute. See=20
Tex.=20
Prop. Code =
ANN.=20
' =
21.012(a)=20
(Vernon 2004). Subsequently, =
the=20
District tendered the $4,420 into the registry of the court. =
On February 28, 2006, =
the trial=20
court granted a partial summary judgment, finding that the =
District had a=20
right to take the easements, leaving the issue of compensation for =
trial. The parties subsequently entered into a settlement =
agreement=20
in which the District agreed to pay Ward $23,000 in compensation =
for the=20
taking of his property. The parties further agreed that =
A[t]he District or its =
assign or=20
successor shall assume and be responsible for all construction and =
maintenance of the drainage easement located within the 1.133 acre =
tract=20
condemned and conveyed in the Agreed Judgment.@
In compliance with =
the=20
settlement agreement, the District prepared an agreed judgment, =
which=20
stated that it would pay Ward $23,000 in exchange for the =
easements. =20
Ward refused to agree to the judgment. On June 5, 2007, the =
District=20
delivered a check to Ward in the amount of $18,580 (the =
condemnation award=20
less the $4,420 in the registry of the court). In a letter =
sent with=20
the check, the District demanded that Ward agree to the judgment, =
or the=20
District would be forced to amend its pleadings to enforce the =
settlement=20
agreement. Because Ward did not agree to the judgment, the =
District=20
amended its pleadings to include an allegation that Ward had =
breached the=20
settlement agreement. Two days later, the District filed a =
motion=20
for partial summary judgment seeking to enforce Aitem 1@ of the settlement =
agreement,=20
i.e., the payment provision.
On July 13, 2007, the =
trial=20
court signed a judgment in which it granted the easements to the =
District=20
and ordered that Ward should recover $23,000 as total compensation =
for the=20
acquisition of the easements. The judgment stated that Ward=20
acknowledged receipt of the District=3Ds check and that Ward =
could=20
withdraw the $4,420 from the registry of the court. On July =
24,=20
2007, Ward returned the District=3Ds check.
The=20
Settlement Agreement
In his first and =
second issues,=20
Ward argues that the trial court erred in failing to include all =
the terms=20
of the settlement agreement in the judgment. Specifically, =
Ward=20
contends that the judgment should have included the obligation of =
the=20
District to construct and maintain all necessary improvements on =
the=20
drainage easement.
When Rule=20
11 prerequisites are met, the trial court has a ministerial duty =
to grant=20
relief in strict accordance with the parties=3D =
agreement. ExxonMobil Corp. v. Valence Operating Co., =
174=20
S.W.3d 303, 309 (Tex. App.CHouston=20
[1st Dist.] 2005, pet. denied); Tex. R. Civ. P. =
11. The=20
District contends that the trial court is not required to include =
all=20
terms of the settlement agreement and that Ward is not harmed by =
the=20
failure of the trial court to include the maintenance provision in =
the=20
judgment. See Compania Financiara Libano v. Simmons, =
53=20
S.W.3d 365, 367 (Tex. 2001). Ward responds, however, that if =
the=20
District=3Ds=20
maintenance of the drainage easement is not included in the =
judgment,=20
future bona fide purchasers will not be put on notice of the=20
District=3Ds=20
obligation.
If the=20
District fails to comply with its obligation to maintain the =
drainage=20
easement while Ward is the property owner, Ward can file suit =
against the=20
district for breach of contract. However, because a future =
property=20
owner is not a party to the contract, a future bona fide purchaser =
would=20
have no remedy against the District, and the maintenance of the =
easement=20
could revert to the property owner. The principles of =
condemnation,=20
in part, enable a landowner to recover all reasonably foreseeable=20
consequential damages from the taking in the statutory =
condemnation=20
proceeding and not be Aburdened=20
with the delay and expense of future lawsuits.@ =
White=20
v. Natural Gas Pipeline Co. of Am., 444 S.W.2d 298, 301 (Tex.=20
1969). The District has recognized that a dominant estate =
owner has=20
the duty to maintain an easement absent an express agreement =
placing that=20
duty of maintenance upon the servient estate owner. See =
Roberts=20
v. Friendswood Development Co., 886 S.W.2d 363, 367 (Tex.=20
App.CHouston=20
[1st Dist.] 1994, writ denied). Acknowledging its =
obligation, the=20
District will not be harmed by its inclusion in the =
judgment. We=20
sustain Ward=3Ds=20
first and second issues and modify the judgment to reflect =
the=20
District=3Ds=20
maintenance obligation. We do so in order to provide notice =
to a=20
potential bona fide purchaser of Ward=3Ds=20
property.
Acknowledgment=20
of Payment
In his third issue, =
Ward argues=20
that the trial court erred in finding that he acknowledged receipt =
of=20
payment from the District. Ward contends that there is no =
evidence=20
to support the trial court=3Ds finding that he =
acknowledged=20
receipt of payment. The record reflects that the District =
sent check=20
number 9844, dated May 3, 2007, in the amount of $18,580, to=20
Ward=3Ds attorney. On =
June 7,=20
2007, in response to the District=3Ds request that Ward =
approve the=20
agreed judgment, Ward=3Ds attorney wrote a =
letter to=20
the District=3Ds attorney stating =
that he=20
would deliver the District=3Ds check to Ward after =
the trial=20
court signed a judgment reflecting the entire settlement =
agreement.=20
Ward fails to explain =
how the=20
trial court=3Ds recitation of his=20
acknowledgment of payment harms him. In presenting an issue =
on=20
appeal, the issue must go further than to merely complain that =
some=20
recital of fact or conclusion of law is erroneous. Chapman v.=20
Reese, 268 S.W. 967, 970 (Tex. Civ. App.CBeaumont 1925), =
writ=20
ref=3Dd, 114 Tex. 583, 278 =
S.W. 1114=20
(Tex. 1925). Even if the trial court=3Ds conclusion were =
erroneous,=20
not every erroneous conclusion mandates a reversal. See =
In re=20
D.S., 76 S.W.3d 512, 523 (Tex. App.CHouston [14th Dist.] =
2002, no=20
pet.). Therefore, Ward has failed to demonstrate error =
requiring=20
reversal. Ward=3Ds third issue is=20
overruled.
Sovereign=20
Immunity
In his fourth issue, =
Ward=20
argues that the District waived its right to sovereign immunity by =
amending its petition to enforce the settlement agreement. =
For this=20
proposition, Ward cites Texas A & M =
UniversityBKingsville v.=20
Lawson, 87=20
S.W.3d 518, 521 (Tex. 2002). In that case, the supreme court =
held=20
that if a government entity agrees to settle a lawsuit from which =
it is=20
not immune, it cannot claim immunity from suit for breach of the=20
settlement agreement. Id. In its third amended=20
petition, the District did not claim immunity from suit, but =
sought to=20
enforce the settlement agreement. The supreme =
court=3Ds holding in =
Lawson does=20
not prohibit the District=3Ds attempt in this =
case to=20
enforce the settlement agreement. Moreover, the =
District=3Ds right to sovereign =
immunity=20
is waived in condemnation suits. See General Services=20
Com=3Dn v. Little-Tex =
Insulation Co.,=20
Inc., 39=20
S.W.3d 591, 598 (Tex. 2001). Ward=3Ds fourth issue is=20
overruled.
The=20
judgment of the trial court is modified to reflect the =
parties=3D =
agreement=20
that AThe=20
District or its assign or successor shall assume and be =
responsible for=20
all construction and maintenance of the drainage easement located =
within=20
the 1.133 acre tract condemned and conveyed in the Agreed=20
Judgment.@ =
As=20
modified, the judgment is affirmed.
/s/ =20
Adele Hedges
Chief=20
Justice
Judgment=20
rendered and Memorandum Opinion filed June 12, 2008.
Panel=20
consists of Chief Justice Hedges and Justice Boyce and Senior =
Justice=20
Hudson.*
_______________________________
*=20
Senior=20
Justice J. Harvey Hudson sitting by assignment. |