                            NUMBER 13-08-00097-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


AMERICO ENERGY RESOURCES,
L.L.C. AND AMERICO OIL AND
GAS PROPERTIES 2000 LTD.,                                                 Appellants,

                                           v.

DAVID MOORE AND JAN K. WHEELIS,                                             Appellees.


   On appeal from the 24th District Court of Victoria County, Texas.


                         MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Vela
                 Memorandum Opinion by Justice Garza

      This case involves a dispute between a landowner and an oil company over the right

to use the landowner’s property for the construction and usage of a “shortcut” pipeline

transporting oil and gas to a compressor station. Appellants, Americo Energy Resources,

L.L.C. and Americo Oil and Gas Properties 2000 Ltd. (“Americo”), appeal the trial court’s

granting of a motion for partial summary judgment filed by appellees, David Moore and Jan
K. Wheelis. Americo also takes issue with the trial court’s: (1) order directing it to remove

the pipeline from the property; and (2) overruling of its motion for reconsideration. We

affirm.

                                               I. BACKGROUND

          The land in question is located on the McFaddin Ranch in Victoria County, Texas.

Americo is the owner of an oil and gas lease on portions of the ranch with Wheelis owning

a non-participating royalty interest.1 Moore is the “[r]anch foreman and consultant for Jan

Wheelis on oil and gas matters on her . . . ranch.”2 Americo uses, owns, and operates a

pipeline commonly called FPL 301, which passes over Wheelis’s land. In 1930, Royston

Nave and N.C. McGowen, previous landowners of the land now known as the Rio Vista

Bluff Ranch,3 granted an easement for the construction and usage of the FPL 301 pipeline

across the land.4 Americo purchased the easement from other oil and gas producers in

November 2003 and has continuously used the pipeline to transport oil and gas across

Wheelis’s property. In 1992, Wheelis granted Pennzoil, one of Americo’s predecessors

in title, a new easement from the northern terminus of the FPL 301 pipeline to a

compressor station adjacent to the Wheelis property. A pipeline was constructed that ran

parallel to railroad tracks marking the northern boundary of the Wheelis property until

          1
          In an affidavit attached to Moore and W heelis’s m otion for partial sum m ary judgm ent, W heelis noted
that she owns the surface rights to the “Rio Vista Bluff Ranch in the McFaddin area of Victoria County.”
W heelis stated that she is fam iliar with her property and the easem ents and oil and gas leases associated with
her property.

          2
         In an affidavit sim ilar to W heelis’s, Moore states that he has worked as the ranch forem an for seven
years and that he is fam iliar with and has personally worked with the oil and gas interests on W heelis’s land.

          3
          It is undisputed that the Rio Vista Bluff Ranch is one of m any sections of land partitioned from the
original McFaddin Ranch.

          4
          The FPL 301 pipeline is diagonally situated on the W heelis property, running from the southeastern
corner of the W heelis property in a northwesterly direction.

                                                        2
reaching the road marking the eastern boundary of the Wheelis property. The pipeline

then angled to the south, running parallel to the road, in order to reach the compressor

station.

       Later, Americo apparently discovered that the FPL 301 pipeline was leaking and

began constructing a new “shortcut” pipeline to the compressor station. This new pipeline,

constructed in November 2006, extended in a northeasterly direction from FPL 301 directly

to the compressor station. This pipeline allowed Americo to transport oil and gas to the

compressor station while avoiding the circuitous route previously used.

       After discovering that Americo was constructing the “shortcut” pipeline without

obtaining consent, Moore and Wheelis denied Americo access to the property.                 In

response, Americo, on January 26, 2006, initiated the underlying suit against Moore and

Wheelis for “refusing to honor right of way easements and oil and gas lease contractual

rights . . . and in barring them from access to the premises . . . .” In this petition, Americo

sought a temporary restraining order (“TRO”) to prevent Moore and Wheelis from denying

Americo access to the land and damages.            After a hearing, the trial court granted

Americo’s TRO; however, the trial court later granted Moore and Wheelis’s motion to set

aside the TRO. This dispute pertained to a disagreement over the usage of and the

alleged damage caused by the operation of the FPL 301 pipeline.

       On February 13, 2007, Moore and Wheelis filed their third amended counterpetition

against Americo, asserting that Americo: (1) had been underpaying Wheelis royalties to

which she was entitled; (2) had damaged and contaminated the Wheelis property by the

negligent operation of the FPL 301 pipeline; and (3) had failed to reasonably develop the

oil and gas lease and was in breach of contract. Moore and Wheelis also: (1) sought a


                                              3
declaration that the lease with Americo had terminated for failure to reasonably develop

the property; (2) brought an action to quiet title; (3) sought an injunction for the removal of

the “shortcut” pipeline; and (4) requested damages for trespass associated with the

construction of the “shortcut” pipeline.

       On September 18, 2007, Moore and Wheelis filed a motion for partial summary

judgment on traditional grounds, contending that they were entitled to judgment as a matter

of law on the trespass and injunction actions contained in their third amended

counterpetition. Specifically, Moore and Wheelis alleged that Americo trespassed on

Wheelis’s property by constructing the new “shortcut” pipeline without obtaining her

consent.    In support of their motion, Moore and Wheelis both executed affidavits

establishing that they observed Americo placing a six-inch pipeline in the ground on

Wheelis’s property and that no oil and gas leases or easements covered this part of the

property.

       On October 16, 2007, Americo filed a response to Moore and Wheelis’s motion for

partial summary judgment, asserting that the “shortcut” pipeline was constructed pursuant

to the same Nave-McGowan easement covering the FPL 301 pipeline; therefore, Wheelis

had consented to the construction of the pipeline and no trespass occurred.

Accompanying Americo’s response was a letter from O.F. Jones, III, counsel for Americo,

stating that “[a]ppropriate affidavits in support of this response will be filed shortly.”

       On October 25, 2007, Americo filed a supplemental response to the motion for

partial summary judgment. In this response, Americo re-asserted its contention that the

“shortcut” pipeline was constructed pursuant to an easement, and it asserted that it had

legal right to enter Wheelis’s property because of its interest in various oil and gas leases


                                               4
executed many years ago that were still producing in paying quantities. Americo did not

file any supporting affidavits or any other summary judgment evidence with its original or

supplemental response.5

        After a hearing, the trial court, on October 26, 2007, granted Moore and Wheelis’s

motion for partial summary judgment. In its order, the trial court noted the following:

             The Court finds there is no genuine issue of material fact as to
        Defendant’s counterclaim for Trespass and Defendants are entitled to
        summary judgment thereon.

               The Court finds that Defendant/Counter Plaintiffs have proven the
        counterclaim and disproved the element of Plaintiffs/Counter Defendants
        claim for Consent.

               The Court finds that Plaintiffs/Counter Defendants have not pled any
        affirmative defense that would preclude summary judgment in this cause.

               The Court finds Defendants are entitled to summary judgment as a
        matter of law because Jan Wheelis is the Owner of the property in question.
        Non-movants has [sic] constructed and caused to be constructed a six inch
        pipeline on Jan Wheelis’s property without her consent and without any right
        or easement or any other grant of authority. The trespass and construction
        and burying of the pipeline has caused damage and injury to the property
        owned by Jan Wheelis.

                 ....

               IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that
        AMERICO ENERGY RESOURCES L.L.C. and AMERICO OIL AND GAS
        PROPERTIES 2000[]LTD. be, and hereby are, commanded and Ordered to
        desist and refrain from using the 6 inch pipeline installed on Jan Wheelis’s
        property in November 2006 . . . .

            IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that
        AMERICO ENERGY RESOURCES L.L.C. and AMERICO OIL AND GAS
        PROPERTIES 2000[]LTD be, and hereby are, commanded and ORDERED


        5
         In fact, on appeal, Am erico adm its the following: “[a]ppellants did not subm it any affidavits or other
sum m ary judgm ent evidence in the belief that none was necessary because the m oving papers [m otion for
sum m ary judgm ent] did not conclusively establish the elem ents of the counter-claim nor conclusively disprove
an elem ent of appellants’ claim .”

                                                        5
         to remove the 6 inch pipeline installed on Jan Wheelis’s property . . . .

         On November 2, 2007, Moore and Wheelis filed a motion to sever their

counterclaims, which the trial court granted on December 4, 2007. On November 26,

2007, Americo filed a motion for reconsideration of the trial court’s order granting the

motion for partial summary judgment. See IPM Prods. Corp. v. Motor Parkway Realty

Corp., 960 S.W.2d 879 ,882 (Tex. App.–El Paso 1997, no pet.) (concluding that a motion

for reconsideration is the equivalent of a motion for new trial) (citing Padilla v. LaFrance,

907 S.W.2d 454, 458 (Tex. 1995)); see also TEX . R. CIV . P. 329b(a) (providing that a

motion for new trial is timely if it is filed prior to or within thirty days after the judgment is

signed). In this filing, Jones attached (1) an affidavit describing the title search he

conducted on the Wheelis property, (2) various leases, (3) a copy of the Nave-McGowen

right of way easement grant, (4) a list of wells drilled on the entire McFaddin Ranch

property, and (5) a right of way grant by Wheelis for the original pipeline connecting the

FPL 301 pipeline to the compressor station. The trial court denied Americo’s motion for

reconsideration on December 11, 2007. Americo timely filed its notice of appeal on

December 20, 2007. See TEX . R. APP. P. 26.1(a) (providing that a notice of appeal may

be filed prior to or within ninety days from the date the judgment is signed if a timely motion

for new trial was filed).6

                                          II. STANDARD OF REVIEW

A. Traditional Motion for Summary Judgment

         The function of summary judgment is to eliminate patently unmeritorious claims and


         6
           Am erico filed an am ended notice of appeal on April 7, 2008, the substance of which is virtually
identical to its original notice of appeal. The am ended notice of appeal was filed to reflect the proper trial court
cause num ber.

                                                         6
defenses, not to deprive litigants of the right to a trial by jury. Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (citing Casso v. Brand, 776 S.W.2d 551, 556

(Tex. 1989)); Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.–Corpus Christi 2003, no

pet.). We review the trial court’s summary judgment de novo. Provident Life and Accident

Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).

       A movant for traditional summary judgment has the burden to establish that there

are no material issues of fact. TEX . R. CIV. P. 166a(c); Rhone-Poulenc, Inc. v. Steel, 997

S.W.2d 217, 222 (Tex. 1999); Mercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 773

(Tex. App.–Corpus Christi 2007, no pet.). Evidence favorable to the nonmovant will be

taken as true, every reasonable inference will be indulged in the nonmovant’s favor, and

doubts must be resolved in the nonmovant’s favor. Knott, 128 S.W.3d at 215.

       Only if the movant meets its burden does the burden shift to the nonmovant to

establish that a genuine issue of material fact remains. TEX . R. CIV. P. 166a(c); see

Mercier, 214 S.W.3d at 773 (citing M.D. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 23

(Tex. 2000) (per curiam); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678

(Tex. 1979)). Moreover, when a movant files a traditional motion for summary judgment

in an action in which the nonmovant has pleaded an affirmative defense, the movant is

entitled to summary judgment if he demonstrates that there is no material factual issue

regarding the elements of his claim, unless the nonmovant shows there is a disputed fact

issue regarding the affirmative defense. Bauer v. Jasso, 946 S.W.2d 552, 555 (Tex.

App.–Corpus Christi 1997, no pet.).

B. Motions for Reconsideration

       Because we construe Americo’s motion for reconsideration as a motion for new trial,

                                                7
we will apply the standard of review corresponding to the review of a motion for new trial.

See IPM Prods. Corp., 960 S.W.2d at 882. Trial courts have broad discretion in ruling on

motions for new trial. Limestone Constr. v. Summit Commercial Indus. Props., 143 S.W.3d

538, 542 (Tex. App.–Austin 2004, no pet.). We review a trial court’s denial of a motion for

new trial for an abuse of discretion. Id. The test for abuse of discretion is whether the trial

court acted arbitrarily or without reference to guiding legal principles. Cire v. Cummings,

134 S.W.3d 835, 838 (Tex. 2004); Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241 (Tex. 1985).

                                        III. ANALYSIS

       In its sole issue, Americo argues that the trial court erred: (1) in granting Moore and

Wheelis’s motion for partial summary judgment; (2) in ordering that the “shortcut” pipeline

be removed; and (3) in denying its motion for reconsideration. Specifically, Americo

asserts that Moore and Wheelis failed to establish their trespass action; the underlying oil

and gas leases and easements indicate that Wheelis consented to the construction of the

pipeline; and the trial court erred in ordering the “shortcut” pipeline removed, thereby

effectuating a permanent injunction when monetary damages were the appropriate award.

Moore and Wheelis contend that they were entitled to summary judgment as a matter of

law because they had established their trespass claim and their affidavits were not

controverted by Americo.      Moreover, Moore and Wheelis argue that because they

established their trespass claim, the burden shifted to Americo to present summary

judgment evidence controverting their evidence, which Americo did not do.

A. Applicable Law

       A trespass to real property occurs "when a person enters another's land without

                                              8
consent." Russell v. Am. Real Estate Corp., 89 S.W.3d 204, 208 (Tex. App.–Corpus

Christi 2002, no pet.). "[A] trespasser is liable to the property owner even though there is

no proof of any actual damages in any specific amount." Meyers v. Ford Motor Credit Co.,

619 S.W.2d 572, 573 (Tex. Civ. App.–Houston [14th Dist.] 1981, no writ) (citing Henry v.

Williams, 132 S.W.2d 633, 634-35 (Tex. Civ. App.–Beaumont 1939, no writ)). A trespass

may be committed on, beneath, or above the surface of the earth. City of Arlington v. City

of Fort Worth, 873 S.W.2d 765, 769 (Tex. App.–Fort Worth 1994, writ dism'd w.o.j.).

However, "no trespass occurs when the entry is authorized as a matter of law." Williams

v. City of Dallas, 53 S.W.3d 780, 788 (Tex. App.–Dallas 2001, no pet.) (holding no trespass

when officers entered land pursuant to valid search warrant).

B. Discussion

       1. The Trial Court’s Granting of the Partial Summary Judgment

       Generally, an affidavit that is clear, positive, direct, credible, free from contradiction,

and could have been readily controverted can serve as competent summary judgment

proof. See TEX . R. CIV. P. 166a(c); Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.

App.–Texarkana 2000, no pet.). A supporting affidavit must: (1) be based on the affiant’s

personal knowledge; (2) be admissible in evidence; and (3) show affirmatively that the

affiant is competent to testify to the matters stated therein. TEX . R. CIV. P. 166a(f).

Moreover, the uncontroverted affidavit of an interested party will support a summary

judgment in the absence of a controverting affidavit. Galvan v. Pub. Utils. Bd., 778 S.W.2d

580, 583 (Tex. Civ. App.–Corpus Christi 1989, no writ).

       Attached to Moore and Wheelis’s motion for partial summary judgment were

affidavits executed by both Moore and Wheelis, along with an aerial photograph of the

                                               9
property and pipelines in question. In her affidavit, Wheelis noted that she had personal

knowledge of the property in question, as she was the owner of the property. Further, she

was familiar with the pipeline easements and oil and gas leases burdening her property.

Wheelis also stated that she had “not consented to the construction of any pipeline” and

that she had:

       not granted any easement to AMERICO ENERGY RESOURCES L.L.C. and
       AMERICO OIL AND GAS PROPERTIES 2000 LTD or anyone else to
       construct[,] bury[,] or lay any pipeline in the location I observed where a
       pipeline was being constructed in November 2006. This six inch pipeline
       constructed . . . is not on any property that is leased for oil and gas
       exploration to anyone.

In addition, Wheelis described the exact location of the “shortcut” pipeline.

       In his affidavit, Moore echoed many of the assertions made by Wheelis. He noted

that he was the ranch foreman; that he had worked with Wheelis’s oil and gas leases and

easements for over seven years; and that he was familiar with the property. Moore stated

that he observed Americo constructing the six-inch “shortcut” pipeline on Wheelis’s

property even though no lease or easement granted Americo authority to do so.

       We conclude that Moore and Wheelis’s affidavits meet the requirements for

affidavits as summary judgment evidence. See TEX . R. CIV. P. 166a(f); Haynes, 35 S.W.3d

at 178. However, on appeal, Americo contends that Moore and Wheelis’s affidavits did not

“aver that they were based on personal knowledge” and that the affidavits are rife with legal

conclusions that cannot support a summary judgment.

       For preservation purposes, an appellate court treats a party’s objections to defects

in the “form” and “substance” of a document differently. See Choctaw Props., L.L.C. v.

Aledo Indep. Sch. Dist., 127 S.W.3d 235, 241 (Tex. App.–Waco 2003, no pet.). Defects



                                             10
in the form of the affidavit must be objected to and the opposing party must have the

opportunity to amend the affidavit.         Brown v. Brown, 145 S.W.3d 745, 751 (Tex.

App.–Dallas 2004, pet. denied). Form defects in an affidavit include: (1) lack of personal

knowledge; (2) hearsay; (3) statement of an interested witness that is not clear, positive,

direct, or free from contradiction; and (4) competence. See Stewart v. Sanmina Tex. L.P.,

156 S.W.3d 198, 206 (Tex. App.–Dallas 2005, no pet.); Choctaw, 127 S.W.3d at 241;

Rizkallah v. Conner, 952 S.W.2d 580, 585-86 (Tex. App.–Houston [1st Dist.] 1997, no

pet.).

         Defects in the substance of an affidavit are not waived by the failure to obtain a

ruling from the trial court on the objection and may be raised by an appellee for the first

time on appeal. See Stewart, 156 S.W.3d at 207. Substantive defects are those that

leave the evidence legally insufficient and include affidavits which are nothing more than

legal or factual conclusions. Id.

         First, both Moore and Wheelis specifically state in their affidavits that they had

personal knowledge of the facts alleged in their motion for partial summary judgment and

the statements made in the affidavit and that they believed the facts to be true and correct.

See Fed. Fin. Co. v. Delgado, 1 S.W.3d 181, 184 (Tex. App.–Corpus Christi 1999, no pet.)

(“[W]here the affidavit does not specifically recite that the facts set forth there are true, but

does set out that it is based on personal knowledge and is subscribed to and sworn before

a notary public, it is not defective if, when considered in its entirety, its obvious effect is that

the affiant is representing that the facts stated therein are true and correct.”). In addition,

rule 166a(f) provides that alleged defects in the form of affidavits will not be grounds for

reversal unless an objection is made with the trial court and the movant is given the

                                                11
opportunity to amend. See TEX . R. CIV. P. 166a(f); see also Brown, 145 S.W.3d at 751.

The record does not reflect that Americo objected to the form of the affidavits with the trial

court; therefore, Americo has waived this contention. See Brown, 145 S.W.3d at 751.

        Americo’s contention that Moore and Wheelis’s affidavits are invalid because their

affidavits are rife with legal conclusions also fails. In their affidavits, Moore and Wheelis

aver that, based on their personal knowledge, the area where the “shortcut” pipeline was

constructed was not subject to any oil and gas leases or easements. Americo argues that

such a statement constitutes a legal conclusion that the property was once subject to an

oil and gas lease or easement and that such lease or easement has now terminated.7 We

do not, however, construe Moore and Wheelis’s affidavits in such a manner. Nowhere in

the affidavits do Moore or Wheelis state that a lease or easement terminated. Moreover,

they asserted that the area of land in question, based on their personal knowledge, was

not subject to any leases or easements. In other words, neither Moore nor Wheelis signed

or consented to a lease or easement covering the area of land in question. This statement

can hardly be construed as a legal conclusion, especially considering that these

statements could have been easily controverted had Americo presented summary

judgment evidence, and that both Moore and Wheelis averred that they had personal

knowledge of the leases and easements burdening the land. Cf. Mercer v. Daoran Corp.,

676 S.W.2d 580, 583-84 (Tex. 1984) (concluding that a legal conclusion in an affidavit is


        7
          In fact, Am erico argues on appeal that several leases apply to W heelis’s property, which it claim s
is evidenced by the fact that W heelis regularly receives royalties from Am erico. However, Am erico did not
present these leases as sum m ary judgm ent evidence controverting the affidavits of Moore and W heelis, and
Am erico has failed to dem onstrate precisely how these leases burden the exact section of W heelis’s property
where the “shortcut” pipeline was constructed. See T EX . R. A PP . P. 38.1(h); see also Roadrunner Invs., Inc
v. Tex. Utils. Fuel Co., 536 S.W .2d 597, 600 (Tex. Civ. App.–Fort W orth 1979, writ ref’d n.r.e.) (reversing a
sum m ary judgm ent granted in favor of a pipeline com pany because it failed to establish as a m atter of law
that the constructed pipeline was located entirely within the easem ent which it was entitled to use).

                                                     12
insufficient to raise an issue of fact in response to a motion for summary judgment or to

establish the existence of a fact in support of a motion for summary judgment). In addition,

Americo has not adequately described how Moore and Wheelis’s statements constituted

legal conclusions and that their affidavits were, therefore, substantively defective. See

TEX . R. APP. P. 38.1(h).

       Based on the summary judgment evidence presented to the trial court, we conclude

that Moore and Wheelis established the essential elements for trespass to land. See

Russell, 89 S.W.3d at 208; City of Arlington, 873 S.W.2d at 769; Williams, 53 S.W.3d at

788.   Moreover, because Americo did not file any summary judgment evidence

controverting the affidavits submitted by Moore and Wheelis, and because Moore and

Wheelis’s affidavits controverted Americo’s affirmative defense of consent, we further

conclude that the trial court did not err in granting Moore and Wheelis’s motion for partial

summary judgment. TEX . R. CIV. P. 166a(c); see Mercier, 214 S.W.3d at 773; Bauer, 946

S.W.2d at 555; Galvan, 778 S.W.2d at 583.

       2. The Trial Court’s Order Requiring Americo to Remove the “Shortcut”
       Pipeline

       In its second sub-issue, Americo takes issue with the trial court’s order requiring it

to remove the “shortcut” pipeline. The trial court, in granting Moore and Wheelis’s request

for injunctive relief, ordered Americo to discontinue usage of the “shortcut” pipeline and to

remove it entirely. Americo argues that the trial court essentially crafted a permanent

injunction requiring it to remove the pipeline even though the damages are temporary in

nature. Americo contends that because the trespass was temporary, Moore and Wheelis

were only entitled to monetary damages.


                                             13
        Americo, however, has mischaracterized the nature of the trespass. Because we

have concluded that the “shortcut” pipeline constituted a trespass on Wheelis’s property,

an additional trespass occurs each time oil or gas is transported using the “shortcut”

pipeline. See City of Arlington, 873 S.W.3d at 769 (“A trespass can be either by entry of

a person upon another’s land, or by causing or permitting a thing to cross the bounday of

the premises. . . . A trespass may be committed on, beneath, or above the surface of the

earth.”). “Where a trespass invades the possession of one’s land, or destroys the use and

enjoyment of that land, an injunction is a proper remedy.” Id. (citing Cargill v. Buie, 343

S.W.2d 746, 749 (Tex. App.–Texarkana 1960, writ ref’d n.r.e.)). An injunction is the proper

remedy to restrain repeated or continuing trespasses where the remedy at law is

inadequate because of the nature of the injury, or the multiplicity of actions necessary to

obtain redress. Id. Therefore, Americo’s usage of the “shortcut” pipeline constitutes a

continuing trespass. See id. Americo has not demonstrated that Wheelis has another

remedy at law to compensate her for its seizure of her land.8 Accordingly, we conclude

that the trial court did not err in ordering the removal of the “shortcut” pipeline.

        2. Americo’s Motion for Reconsideration

        In its final sub-issue, Americo contends that the trial court abused its discretion in

denying its motion for reconsideration. However, on appeal, Americo has not provided


        8
           For exam ple, Am erico has not proven that it is a public utility vested with the right to exercise
em inent dom ain. See Valero Eastex Pipeline Co. v. Jarvis, 926 S.W .2d 789, 792 (Tex. App.–Tyler 1996, writ
denied) (“Em inent dom ain is the right or power of a Sovereign state to appropriate private property for the
prom otion of the general welfare . . . . The Legislature has expressly conferred upon public utilities . . . the
right and power of em inent dom ain.”); Tex. Elec. Serv. Co. v. Linebery, 333 S.W .2d 596, 598 (Tex. Civ.
App.–El Paso 1960, no writ); see also City of Lubbock v. Phillips Petroleum Co., 41 S.W .3d 149, 155-60 (Tex.
App.–Am arillo 2000, no pet.) (concluding that a pipeline com pany was not a public utility). In such a case,
Am erico would have been able to seize W heelis’s property for the construction and usage of the “shortcut”
pipeline for public use in exchange for just com pensation. See T EX . C ON ST . art. I, § 17; see also Hudson v.
Ark. La. Gas Co., 626 S.W .2d 561, 563-64 (Tex. App.–Texarkana 1981, writ ref’d n.r.e.).

                                                      14
appropriate citations to the record or authority relating to this issue. See TEX . R. APP. P.

38.1(h). As a result, we cannot say that the trial court abused its discretion in denying

Americo’s motion for reconsideration. See Limestone Constr., 143 S.W.3d at 542.

Accordingly, we overrule Americo’s sole issue on appeal.

                                      IV. CONCLUSION

        Having overruled Americo’s sole issue on appeal, we affirm the judgments of the

trial court.


                                                  DORI CONTRERAS GARZA,
                                                  Justice

Memorandum Opinion delivered and
filed this the 29th day of August, 2008.




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