


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-08-00405-CV
 
Enbridge Pipelines (East Texas) L.P.,
                                                                                    Appellant
 v.
 
Camp Cooley, LTD,
                                                                                    Appellee
 
 

From the 82nd District Court
Robertson County, Texas
Trial Court No. 06-09-17,595A-CV
 

MEMORANDUM  Opinion





 
            Enbridge Pipelines (East Texas) L.P.
appeals the judgment of the trial court that granted the partial motion for
summary judgment filed by Camp Cooley, Ltd.  Tex.
R. Civ. P. 166a(c).  Enbridge complains that the trial court erred in
its determination that Camp Cooley established as a matter of law that they
were not “unable to agree” on the amount of damages, but in fact had orally
agreed as to the amount of damages.  The trial court also denied Enbridge’s
traditional and no-evidence motions for summary judgment, which Enbridge did
not appeal.  The trial court severed out several remaining claims, making the
judgment entered by the trial court in this cause a final judgment for purposes
of appeal.  Because we find that the trial court erred in determining that the
oral agreement did not violate the statute of frauds and was enforceable, and
that Enbridge satisfied its burden that the parties are unable to agree on the
amount of damages, we reverse and remand.
Factual Background
            In the spring of 2006, Enbridge approached
 Camp Cooley regarding their desire to purchase up to three easements across Camp Cooley’s property for the purpose of laying natural gas pipelines.  Representatives
from Enbridge met with representatives from Camp Cooley to discuss the
easements on May 22, 2006.  The only agreement made at this meeting was that
the price for the easements would be $600.00 per rod for a permanent easement
and $350.00 per rod for a term easement, at Enbridge’s election.  There was no
agreement as to the exact location or length of the easements, and it was
disputed as to whether there was an agreement as to the width of the
easements.  It was undisputed that there was no written agreement or other
memorialization created or executed at this meeting.
            Shortly after the meeting, attorneys
from Camp Cooley submitted proposed easement documents to Enbridge, which were
never executed by Enbridge.  Enbridge then submitted written offers to Camp Cooley beginning in July of 2006 setting forth their proposed offers for three easements,
with full legal descriptions of the lands to be included in the easements,
which proposed to pay Camp Cooley far less than the $600.00 per rod for a
permanent easement.  Camp Cooley rejected the offer, contending that an
agreement had already been reached as to the amount of the damages Enbridge
would pay Camp Cooley for the easements based on the $600.00 per rod figure. 
            Enbridge then filed its first petition
with the trial court, asking for the trial court to appoint three special
commissioners to determine the amount of damages for the creation of two
easements.  Camp Cooley filed a petition alleging causes of action for breach
of contract and trespass in a separate cause number.  Approximately a month
later, Enbridge filed a second petition in a different cause number regarding a
third condemnation.[1]  Camp
Cooley did not participate in this process, but filed an objection to the
award, which resulted in the proceedings taking place in the trial court.  The
trial court consolidated the three causes at Camp Cooley’s request, to which
Enbridge objected.
Condemnation Proceedings
            Section 21.02 of the Texas Property Code provides:
(a) If the United States, this state, a political
subdivision of this state, a corporation with eminent domain authority, or an
irrigation, water improvement, or water power control district created by law
wants to acquire real property for public use but is unable to agree with the
owner of the property on the amount of damages, the condemning entity may begin
a condemnation proceeding by filing a petition in the proper court.

(b) The petition must: 
 
(1)  
 describe the property to be
condemned;

(2) state the purpose for which the entity intends to use the property;

(3) state the name of the owner of the property if the owner is known; and

(4) state that the entity and the property owner are unable to agree on
the damages. 
 
Tex. Prop. Code Ann. § 21.012 (Vernon 2004) (emphasis added).  The
condemnation petitions filed by Enbridge in the trial court contained all of
the foregoing statutory allegations, including a statement that Enbridge
and Camp Cooley were unable to agree on the damages for the easements to be
condemned.
Standard of Review
We review the trial court's granting of a motion
for summary judgment de novo.  Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005).  The movant in a traditional summary judgment
motion must show that there is no genuine issue of material fact and that they
are entitled to judgment as a matter of law.  See Tex. R. Civ. P. 166a(c).  When
reviewing a summary judgment, we take as true all evidence favorable to the
nonmovant, and we indulge every reasonable inference and resolve any doubts in
the nonmovant’s favor.  Valence Operating Co., 164 S.W.3d at 661.  If the
movant establishes their right to a judgment as a matter of law, the burden
then shifts to the nonmovant to present evidence raising a genuine issue of
material fact, which precludes the granting of a motion for summary judgment.  See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). 
Evidence is conclusive only if reasonable people could not differ in their
conclusions.  City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).  When the trial court does not specify the grounds
upon which it ruled, the judgment may be affirmed if any ground stated in the
motion is meritorious.  W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
Further, “[w]hen both parties move for summary
judgment and the trial court grants one motion and denies the other, the
reviewing court should review the summary judgment evidence presented by both
sides and determine all questions presented and render the judgment the trial
court should have rendered.”  Canyon Reg'l Water Auth. v. Guadalupe-Blanco River Auth., 258 S.W.3d 613, 616 (Tex. 2008) (citing Tex. Workers'
Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004)).
Enbridge argues that the statute of
frauds mandates that any offers or agreements for the terms of the easement be
in writing in order to be enforceable.  See Tex. Bus. & Comm. Code Ann. § 26.01 (Vernon 2009). 
Enbridge also contends that regardless of whether a specific amount was orally
agreed upon by the parties, there were additional terms and conditions that
were not included in the exchange, and therefore, any agreement was merely an
“agreement to agree,” but was not an enforceable contract.  Camp Cooley contends that the statute of frauds does not apply to this situation and that the
only thing to be agreed upon was the amount of damages.  It is undisputed that
there is no written agreement regarding the amount of damages to be paid.  It
is also undisputed that the amount allegedly agreed upon was $600.00 per rod
for a permanent easement or $350.00 per rod for a term easement.[2]
Statute of Frauds
            Section 26.01 of the Texas Business
and Commerce Code states in relevant part as follows:
A promise or agreement described in Subsection (b)
of this section is not enforceable unless the promise or agreement, or a
memorandum of it, is 
 
(1) in writing; and

(2) signed by the person to be charged with the promise or agreement or by
someone lawfully authorized to sign for him.

(b) Subsection (a) of this section applies to:

. . . 
 
(4)
a contract for the sale of real estate . . . .
 
Tex. Bus. & Com. Code
Ann. § 26.01.  An
easement is an express interest in land that is subject to the statute of
frauds.  Pick v. Bartel, 659 S.W.2d 636, 27 Tex. Sup. Ct. J. 73 (Tex. 1983). 
Whether a contract for an easement meets the requirements of the statute of
frauds is a question of law.  Bratcher v. Dozier, 162 Tex. 319, 346
S.W.2d 795, 796 (Tex. 1961); West Beach Marina, Ltd. v. Erdeljac, 94
S.W.3d 248, 264 (Tex. App.—Austin 2002, no pet.).
            The issue, then, is whether an
agreement as to the amount of damages to be paid in a condemnation stands alone
or must be considered in totality with the entire easement to be created, which
is the basis of the condemnation.  It is undisputed that the precise location
for the placement of the easements was not agreed to in the meeting on May 22,
2006, when the agreement on the price per rod at issue here was reached.  We
believe that the entire easement must be considered in order to determine
whether or not the agreement had to be in writing to be enforceable.  Down to
the most basic level, the transaction at stake in this matter involved the
exchange of an interest in real property for compensation or damages. 
Therefore, the statute of frauds applies as the basis of the transaction is the
sale of real estate.  The lack of a written agreement does not satisfy the
statute of frauds, and therefore, is not an enforceable agreement.  The trial
court erred in granting Camp Cooley’s motion for partial summary judgment based
on the oral agreement.  We further find that the judgment the trial court
should have rendered was to find that the oral agreement to pay $600.00 per rod
violated the statute of frauds, and that Enbridge has satisfied its burden that
the parties were unable to agree on the amount of damages to be paid.  The
trial court should have granted Enbridge’s motion for summary judgment on that
issue.  This leaves a fact question to be determined as to the appropriate
amount of damages to be paid by Enbridge.  We sustain Enbridge’s sole issue.
Conclusion
            We find that the oral agreement as to the amount of damages to be
paid by Enbridge to acquire the easements violates the statute of frauds and is
unenforceable.  We find that the trial court erred in its determination that
there was an enforceable agreement to pay $600.00 per rod based on the oral
agreement.  We find that Enbridge satisfied its burden that the parties were
unable to agree on the amount of damages to be paid, and therefore, there is a
fact issue to be determined regarding the amount of damages.  We reverse the
judgment of the trial court and remand for further proceedings.
                                                                        TOM
GRAY
                                                                        Chief
Justice


Before Chief Justice
Gray,
            Justice
Reyna, and
            Justice Davis
(Justice
Davis concurs as to the judgment only)
Reversed and remanded
Opinion delivered and
filed January 20, 2010
[CV06]




[1]
There is a dispute between the parties as to whether this easement was
encompassed in the prior agreement to pay $600.00 per rod, or whether this
request arose after the meeting, and therefore, the $600.00 per rod figure
should not apply.  Because of our holding regarding the statute of frauds, it
is not necessary to reach this issue.


[2] A rod is a linear measure equal to 5.5 yards or 16.5 feet (5.03
meters).
 


