      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


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                                      NO. 03-05-00311-CV
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                      Wiegand Hermanos, Perforadores, S.A., Appellant

                                                 v.

                                   City of Lockhart, Appellee



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FROM THE DISTRICT COURT OF CALDWELL COUNTY, 274TH JUDICIAL DISTRICT
         NO. 03-071B, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
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                            MEMORANDUM OPINION


               This appeal arises from a lawsuit filed by the City of Lockhart against Wiegand

Hermanos, Perforadores, S.A. (“Wiegand”), a Mexican corporation, over the unauthorized

subdivision of real property in Caldwell County. Frederick Wiegand, Jr., is the president and sole

employee of the company, and lives on the property owned by the company.1 The company filed a

counterclaim for conversion and a constitutional-takings claim for the removal of dirt and rock fill



       1
         In his deposition, Frederick Wiegand testified that he is also “director and administrator”
of the company and receives no salary. He inherited the property from his mother when she died in
1991 and “put it in a Mexican corporation” to “protect it” from the City. All references to
“Wiegand” are to the appellant company. References to “Frederick” or “Mr. Wiegand” are to the
individual.
when the City installed a wastewater line across Wiegand’s property. The district court granted

summary judgment in favor of the City as to the takings claim. On appeal, Wiegand contends that

the trial court erred in granting the City’s motion for summary judgment by concluding that there

was not a taking, and in finding no evidence (i) of the intent required for a valid takings claim and

(ii) that the taking was for a public use. For the reasons that follow, we affirm the judgment.


                                          BACKGROUND

                The following facts are undisputed. On March 15, 2002, the City and Frederick

Wiegand, Jr., on behalf of the company, entered into a contract for a wastewater pipeline easement.

The agreement allowed the City to install and maintain a wastewater line across the property.

Among other things, the agreement provided that (i) any brush or timber that was cut “must either

be stacked at a location along the easement as requested by [Wiegand], or chipped and distributed

along the easement, or otherwise disposed,” (ii) the City “will allow no trash, debris, or refuse from

its operations to exist on the ground,” and (iii) after construction of the line, the City “will restore

the surface as nearly as practicable to its original condition, so as not to affect normal drainage.” The

City paid Wiegand $1680 in consideration for the easement. In June and July 2003, the City

installed the pipeline, removing the excavated material.

                Meanwhile, on April 22, 2003, the City filed its original petition challenging

Wiegand’s efforts to subdivide the property into various tracts of land for development in violation

of the City’s municipal code. In its petition, the City sought injunctive relief relating to Wiegand’s

refusal to allow the City entry to the land to inspect and effect repairs to the City’s water lines.

Holding the certificate of convenience and necessity for the water supply in the area, the City alleged

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that it sought to repair the water distribution line and thereby preserve the integrity of its water

distribution system. In June, Wiegand filed an answer and thereafter a counter petition, alleging

claims for conversion for removing “valuable” property, to wit, the excavated dirt and rocks from

the premises, and for nuisance for the operation of a shooting range in the vicinity. In September,

Wiegand amended its counter petition to allege a claim for conversion and “the taking of the dirt and

gravel” in violation of Article 1, Section 17 of the Texas Constitution. See Tex. Const. art. I, § 17.

Wiegand complains that the City did not have the right to remove the excavated material from the

property.

               The City moved for summary judgment on the takings claim. In its motion, the City

urged that as a matter of law Wiegand was unable to prove the elements required for it to prevail on

its takings theory and that there were no genuine issues of material fact. The takings claim was

severed from the original suit prior to the grant of the summary judgment in favor of the City and

is the only claim before us on appeal.


                                             ANALYSIS

               Wiegand claims that the district court erred in granting summary judgment in favor

of the City because there was sufficient evidence to create a fact question regarding the intent to take

and whether the taking was for a public use. Specifically, Wiegand contends that the contract

granting the easement to the City does not give the City ownership rights to the displaced material

excavated in the process of installing the pipeline and that therefore the City “took” its property

without just compensation. Despite the language of the contract, Wiegand claims that his

understanding was that the contractor would leave the fill in mounds on his property for his use.

                                                   3
This understanding was based on conversations with a representative of the contractor in June or July

2003 when the City’s contractor was digging the ditch for the pipeline. The City responds that the

excavated material was removed in compliance with the contract and that no taking occurred.

               The City moved for summary judgment pursuant to both Rule 166a(c) and Rule

166a(i). 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). To prevail on a motion for summary judgment under

Rule 166a(c), the movant must show that no genuine issue of material fact exists and that the movant

is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life, 128 S.W.3d at

215-16; Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). Applying familiar

standards, we take as true all evidence favorable to the non-movant. Rhone-Poulenc, Inc. v. Steel,

997 S.W.2d 217, 223 (Tex. 1999). We resolve any doubts about the existence of a genuine issue of

material fact in a light most favorable to the non-movant. Id.; Nixon v. Mr. Prop. Mgmt. Co., Inc.,

690 S.W.2d 546, 548-49 (Tex. 1985).

               Under Rule 166a(i), a party may move for summary judgment on the ground that

there is no evidence of one or more essential elements of a claim or defense on which an adverse

party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). Unless the respondent

produces summary judgment evidence raising a genuine issue of material fact, the court must grant

the motion. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).

               When the trial court does not specify the basis for its summary judgment, as here, the

appealing party must show it is error to base the judgment on any ground asserted in the motion.

Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). Because the trial court’s order does



                                                 4
not specify the grounds for its summary judgment, we must affirm the summary judgment if any of

the theories presented to the trial court and preserved for appellate review are meritorious. Provident

Life, 128 S.W.3d at 216.

               Any issue relied upon to avoid the movant’s entitlement to summary judgment must

be expressly presented by written answer or response to the motion. McConnell v. Southside Indep.

Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 678 (Tex. 1979) (“the non-movant must expressly present to the trial court any reasons

seeking to avoid movant’s entitlement. . . .”). Thus, any issues not expressly presented to the trial

court shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c).

               Article 1, Section 17 of the Texas Constitution provides that “[n]o person’s property

shall be taken, damaged or destroyed for or applied to public use without adequate compensation

being made, unless by the consent of such person.” Tex. Const. art. I, § 17. Whether particular facts

are enough to constitute a taking is a question of law. Mayhew v. Town of Sunnyvale, 964 S.W.2d

922, 936 (Tex. 1998). In the usual situation, the governmental entity compensates the property

owner before taking his property, either by paying a mutually agreed price or by paying the value as

determined in a formal condemnation proceeding. Westgate, Ltd. v. State, 843 S.W.2d 448, 452

(Tex. 1992).

               To establish a takings claim, Wiegand had the burden of proving (1) the City

intentionally performed certain acts, (2) that resulted in a taking of property, (3) for public use. See

Steele v. City of Houston, 603 S.W.2d 786, 791-92 (Tex. 1980). In its motion for summary

judgment, the City sought to demonstrate its entitlement to summary judgment by negating any



                                                   5
intent to take under eminent domain. The City also challenged each of the elements on which

Wiegand had the burden of proof at trial.

               The City bases its motion on the easement agreement which provides the City with

both the authority and the duty to remove any “trash, debris, or refuse” that remained after the

installation of the pipeline on Wiegand’s property. Thus, the City contends it was acting within the

scope of the agreement and there was no taking. Attached to its motion, the City appended

Wiegand’s amended counter petition, excerpts of Mr. Wiegand’s deposition testimony, the easement

agreement, and an affidavit of Vance Rodgers, the City’s assistant city manager. In his affidavit,

Rodgers averred that, as a representative of the City, he personally entered into the contract with

Wiegand on March 15, 2002:


       The agreement provided the City with an easement on Mr. Wiegand’s property for
       the purpose of the installation of waste and sewer lines. In consideration for the
       conditions set forth in the agreement, the City paid to Wiegand $1,680.


       In June and July of 2003, the City hired a contractor to install a pipeline on
       Wiegand’s property. As a result of the construction, there was excess dirt and gravel
       on Wiegand’s property. The City transported the excess dirt and rock off of
       Wiegand’s property pursuant to the terms of the attached easement. Under the
       agreement the City was not permitted to allow any refuse to remain on site, other than
       timber. Moreover, the City was obligated to restore the surface condition of the
       property to its pre-installation condition. We made sure that the contractor hired by
       the City knew that any excavated dirt was to be removed from the property so that
       Wiegand’s property was restored to its original condition.


The easement agreement included the following “special terms and conditions” among its

provisions:




                                                 6
        1.     Grantee, in constructing the sewer main or pipeline along said easement, will
               bury said pipeline so that the top of same is at least three (3) feet below the
               surface of the earth, except that grantee shall have the right to construct and
               maintain manholes on and to the pipeline above and below the surface of the
               earth with the permanent easement described in Exhibits “A” and “B.”
        ....

        5.     Any brush or timber cut by grantee in its operations within the easement must
               either be stacked at a location along the easement as requested by grantors, or
               chipped and distributed along the easement, or otherwise disposed. Grantee will
               allow no trash, debris, or refuse from its operations to exist on the ground.

        6.     After construction of the said line, grantee will restore the surface as nearly as
               practicable to its original condition, so as not to affect normal drainage.


                 One of the no-evidence grounds raised by the City in its motion for summary

judgment was that the City acted pursuant to its easement contract and there was no intent to take,

only an intent to act within the scope of its contract. On appeal, Wiegand asserts that this is a

property rights case and not a breach-of-contract case2 and that the City did not act in good faith

when it took the excavated material. Wiegand’s arguments on appeal, however, vary from those

presented to the trial court. We shall consider only those issues and grounds Wiegand expressly

presented to the trial court.

                 Wiegand contends that genuine issues of material fact exist concerning “the terms of

the contract and the performance required by the City” and “whether the material taken by the City

was taken for public use.” Wiegand recited that it entered into the easement agreement, was

compensated for the easement, and that the agreement was vague and ambiguous as to the removal


        2
         The state is immune from a suit for money damages based on an alleged breach of contract
unless the state has expressly given its consent to be sued. See, e.g., Federal Sign v. Texas S. Univ.,
951 S.W.2d 401, 405 (Tex. 1997).

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of the fill and its value. Wiegand does not contend that it did not enter into a contract with the City

or that it was not compensated. Nor does Wiegand contend that the City was unlawfully on the

property or unauthorized to install the pipeline.

               Wiegand urges that, based on the conversation with the foreman at the time of the

work, the City was aware that Wiegand claimed ownership of the material. In his deposition,

attached to Wiegand’s response, Mr. Wiegand testified that he informed a representative of the

contractor in June 2003—a year after entering into the contract—that he wanted the material and that

it had value, and that the City intentionally removed the material. In his affidavit, Mr. Wiegand

averred that in June 2003 the foreman had orders to haul the material off of Wiegand’s property and

“dump” it across the fence on the City’s land and that in July 2003, Mr. Wiegand measured and

determined the value of the “mounds of caliche dirt” produced by the pipeline installation.

               Wiegand also claims that the terms of the contract are vague and ambiguous.

Whether a contract is ambiguous is a question of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.

1983). If the contract is so worded that it can be given a certain or definite legal meaning or

interpretation, then it is not ambiguous. Id. Determining whether a provision is ambiguous requires

that we examine the entire contract in light of the circumstances that existed when the parties formed

the contract. Id.; State Farm Fire & Cas. Co. v. Vaughan, 968 S.W.2d 931, 933 (Tex. 1998). When

a contract is unambiguous, we must defer to the language of the contract, not a party’s interpretation

of that language. Allodial Ltd. P’ship v. North Tex. Tollway Auth., 176 S.W.3d 680, 683 (Tex.

App.—Dallas 2005, pet. denied).




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                In construing the contract as a whole, we find that it is not ambiguous and that the

City was required to remove the excavated material in accordance with the terms of the contract.3

The contract required the City to remove any “trash, debris, or refuse” derived from its operation and

to restore the surface of the property to its original condition so as to have no impact on drainage.

Moreover, the contract distinguished the treatment of the excavated material from brush or timber.

With regard to any brush or timber that was cut, Wiegand expressly reserved the right to compel the

City “as requested” to stack, chip, or dispose of it. Wiegand also reserved all rights to the

development of “oil, gas and other minerals” on the property.

                By entering into the contract and receiving compensation pursuant to the contract,

Wiegand consented to the State’s acting according to the contract. In a contractual context, the State

does not have the requisite intent under constitutional-takings jurisprudence when it acts within the

procedures outlined in the contract. General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d

591, 598-99 (Tex. 2001). “Rather the State is acting within a color of right under the contract and

not under its eminent domain powers.” Id. at 599. As this Court explained in State v. Steck Co.:


        It is clear that the stamps were delivered to the State, and its possession of them was
        by virtue of the contract and not by virtue of a taking within the meaning of Art. I,
        Sec. 17. Appellee by making the contract, manufacturing the stamps and delivering
        them to the State did so voluntarily and with its own consent, and can not now say
        the stamps were taken under the power of eminent domain.


        3
          Indeed, it is more likely to implicate constitutional-takings jurisprudence for the City to fail
to remove the debris: “[w]hen the government causes matter or debris, such as earth, sewage, or
water, to cover a portion of private property, or when such material somehow interferes with
activities or potential activities on the land, it may constitute a constructive taking that requires
compensation.” 2A Julius L. Sackman, Nichols on Eminent Domain § 6.01[14][c] at 6-54 (3d ed.
2005).

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236 S.W.2d 866, 869 (Tex. Civ. App.—Austin 1951, writ ref’d) (citations omitted); see also Sun Oil

Co. v. United States, 572 F.2d 786, 818 (Ct. Cl. 1978) (“The concept of a taking as a compensable

claim theory has limited application to the relative rights of party litigants when those rights have

been voluntarily created by contract.”); J.D. Hedin Constr. Co. v. United States, 456 F.2d 1315, 1329

(Ct. Cl. 1972) (same). Where the State does not have the intent to take under its eminent domain

powers, but only has an intent to act within the scope of the contract, it is not a taking. Green Int’l

v. State, 877 S.W.2d 428, 434 (Tex. App.—Austin 1994, writ dism’d by agr.).

                Because the City was acting under colorable contractual rights, it did not have the

requisite intent to take Wiegand’s property under any eminent domain powers. See Little-Tex, 39

S.W.3d at 599; Green Int’l, 877 S.W.2d at 434-35. The City was not exercising its power of eminent

domain, but was exercising its contractual rights. The City met its summary judgment burden on

the defense to Wiegand’s takings claim. Accordingly, Wiegand’s constitutional takings claim must

fail.

                Wiegand argues that, should this Court find that there is a contract or agreement

between the parties, there is a disputed fact issue concerning the City’s good faith. Even assuming

that there is a question about the City’s intent to act within the scope of its contract, this issue was

not raised before the trial court and, further, Wiegand failed to adduce a scintilla of evidence so as

to raise a question of material fact in response to the City’s motion. Although Wiegand produced

Mr. Wiegand’s affidavit along with excerpts of his testimony, it failed to adduce or point to evidence

regarding any of the terms or the performance of the contract. The only evidence adduced regarding

the contract was a conversation Mr. Wiegand had with the foreman for the contractor over a year



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after the execution of the contract. In sum, Wiegand presented no evidence to raise a material fact

question as to the scope of the contract or the City’s intent.


                                          CONCLUSION

               We overrule Wiegand’s issues and affirm the trial court’s judgment.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Justices B. A. Smith, Patterson and Puryear

Affirmed

Filed: May 19, 2006




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