                                                                                     ACCEPTED
                                                                                 09-17-00107-CV
                                                                      NINTH COURT OF APPEALS
                                                                             BEAUMONT, TEXAS
                                                                              12/13/2017 2:20 PM
                                                                          CAROL ANNE HARLEY
                                                                                          CLERK


                         No. 09-17-00107-CV
                                                            FILED IN
                                                     9th COURT OF APPEALS
                  IN THE NINTH COURT OF APPEALS          BEAUMONT, TEXAS
                         BEAUMONT, TEXAS             12/13/2017 2:20:51 PM
                                                       CAROL ANNE HARLEY
                                                              Clerk

                            KEVIN GEHEB,
                                               Plaintiff/Appellant,
                                 v.

             TRANSCANADA KEYSTONE PIPELINE, LP,
                                       Defendant/Appellee.


               On appeal from the 58th Judicial District Court
        Jefferson County, Texas, Hon. Kent Walston, Judge Presiding
__________________________________________________________________

  BRIEF OF APPELLEE TRANSCANADA KEYSTONE PIPELINE, LP


   GERMER, P.L.L.C.                      ZABEL FREEMAN
   Karen Bennett                         Thomas A. Zabel
   State Bar No. 21702640                State Bar No. 22235500
   P.O. Box 4915                         James A. Freeman
   Beaumont, Texas 77704                 State Bar No. 00796580
   (409) 654-6700 – telephone            Nancy H. Elliott
   (409) 835-2115 – fax                  State Bar No. 08701240
   krbennett@germer.com                  1135 Heights Blvd.
                                         Houston, Texas 77008
                                         (713) 802-9117 – telephone
                                         (713) 802-9114 – fax
                                         tzabel@zflawfirm.com
                                         jfreeman@zflawfirm.com
                                         nelliott@zflawfirm.com

                 ATTORNEYS FOR APPELLEE
             TRANSCANADA KEYSTONE PIPELINE, LP

                    ORAL ARGUMENT REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL


               Kevin Geheb                              Plaintiff/Appellant


            Robert Keith Wade                     Counsel for Plaintiff/Appellant
    LAW OFFICES OF ROBERT KEITH WADE                      Kevin Geheb
     650 North Ninth Street at McFaddin
          Beaumont, Texas 77702


     TransCanada Keystone Pipeline, LP                 Defendant/Appellee


             Thomas A. Zabel                     Counsel for Defendant/Appellee
            James A. Freeman                    TransCanada Keystone Pipeline, LP
             Nancy H. Elliott
             ZABEL FREEMAN
            1135 Heights Blvd.
           Houston, Texas 77008


              Karen Bennett                      Counsel for Defendant/Appellee
            GERMER, P.L.L.C.                    TransCanada Keystone Pipeline, LP
              P.O. Box 4915
          Beaumont, Texas 77704




	                                         i
	                                          		
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

INDEX OF AUTHORITIES.................................................................................... iv

REFERENCES ........................................................................................................ vi

STATEMENT OF THE CASE ............................................................................... vii

ISSUES PRESENTED .......................................................................................... viii

         1.       Did the trial court properly grant summary judgment in favor of
                  TransCanada on all of Geheb’s claims on the grounds that
                  Geheb settled, released, waived, and forever discharged all such
                  claims? ............................................................................................... viii

         2.       Did the trial court properly grant summary judgment in favor of
                  TransCanada on all of Geheb’s claims on the grounds that there
                  was no evidence of a “taking?” ......................................................... viii

STATEMENT OF FACTS ....................................................................................... 1

         1.       The Pipeline.......................................................................................... 1

         2.       The Landowner grants TransCanada an Easement on the
                   Property .............................................................................................. 2

         3.       TransCanada and the Landowner agree that TransCanada will
                   not be responsible for payment to any tenant, and the
                   Landowner will pay any compensation due the tenant ....................... 2

         4.       Geheb demands advance payment from TransCanada for 2012
                  crop damage ........................................................................................ 3

         5.       Geheb demands advance payment from TransCanada for 2013
                  crop damage ......................................................................................... 4

         6.       Geheb files suit against TransCanada ................................................. 5


	                                                            ii
	                                                             		
         7.       Geheb seeks irrelevant discovery related to TransCanada’s
                  status as a common carrier .................................................................. 6

         8.       The case is transferred to district court ............................................... 8

         9.       The trial court grants summary judgment in favor of
                  TransCanada on Geheb’s claims ......................................................... 9

STANDARD OF REVIEW .................................................................................... 10

SUMMARY OF THE ARGUMENT ..................................................................... 10

ARGUMENT .......................................................................................................... 13

I.       Geheb Settled, Released, Waived, and Forever Discharged All of His
         Claims Against TransCanada ....................................................................... 13

         A.       A Release of a Claim Extinguishes that Claim .................................. 13

         B.       Geheb’s Claims Fall Squarely within the Express Language of
                  the 2013 Release................................................................................. 14

                  1.        Geheb ignores the 2013 Release .............................................. 14

                  2.        The 2013 Release bars Geheb’s claims.................................... 15

II.      TransCanada Did Not Exercise the Power of Eminent Domain to
         Obtain the Easement on the Property that Geheb Leased for Rice
         Farming ......................................................................................................... 18

         A.       The Landowner Granted the Easement to TransCanada—There
                  Has Been No “Taking” ....................................................................... 20

CONCLUSION AND PRAYER ............................................................................ 22

CERTIFICATE OF COMPLIANCE ...................................................................... 24

CERTIFICATE OF SERVICE ............................................................................... 24



	                                                           iii
	                                                             		
                              INDEX OF AUTHORITIES

CASES                                                                                               PAGE

Becon Constr. Co. v. Alonso,
     444 S.W.3d 824 (Tex. App.—Beaumont 2014, pet. denied) ....................... 10

Chambers v. Pruitt,
    241 S.W.3d 679 (Tex. App.—Dallas 2007, no pet.) ................................... n.3

Doggett v. Nitschke,
     498 S.W.2d 339 (Tex. 1973) ....................................................................... n.3

Dresser Indus., Inc. v. Page Petroleum, Inc.,
      853 S.W.2d 505 (Tex. 1993) ........................................................................ 14

D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P.,
      416 S.W.3d 217 (Tex. App.—Fort Worth 2013, no pet.) ............................. 16

Franks v. Brookshire Bros., Inc.,
     986 S.W.2d 375 (Tex. App.—Beaumont 1999, no pet.) .............................. 13

Harris v. Phillips Pipe Line Co.,
      517 S.W.2d 361 (Tex. Civ. App.—Austin 1974, writ ref’d n.r.e.) .......... 20-21

Hart v. Traders & Gen. Ins. Co.,
      189 S.W.2d 493 (Tex. 1945) ........................................................................ 13

Henry v. Masson,
     333 S.W.3d 825 (Tex. App.—Houston [1st Dist.] 2010, no pet.) .......... 13, 14

Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.,
      20 S.W.3d 692 (Tex. 2000) ..................................................................... 15-16

Long Distance Int’l, Inc. v. Telefonos de Mexico, S.A. de C.V.,
     49 S.W.3d 347 (Tex. 2001) .......................................................................... 10

M.D. Anderson Hosp. & Tumor Inst. v. Willrich,
     28 S.W.3d 22 (Tex. 2000) ............................................................................ 10


	                                                    iv
	                                                     		
Memorial Med. Center v. Keszler,
    943 S.W.2d 433 (Tex. 1997) ........................................................................ 16

Mobil Pipe Line Co. v. Smith,
      860 S.W.2d 157 (Tex. App.—El Paso 1993, writ dism’d w.o.j.) ............ 20-21

Naik v. Naik,
      438 S.W.3d 166 (Tex. App.—Dallas 2014, no pet.) .................................... 13

Phillips Pipe Line Co. v. Razo,
       420 S.W.3d 691 (Tex. 1967) ........................................................................ 20

Provident Life & Accident Ins. Co. v. Knott,
      128 S.W.3d 211 (Tex. 2003) ........................................................................ 10

Reytec Constr. Resources, Inc. v. Baptist Hosps. of Se. Tex.,
      No. 09-15-00085-CV, 2016 WL 6900874
       (Tex. App.—Beaumont Nov. 23, 2016, no pet.) ......................................... 13

Roskey v. Texas Health Facilities Comm’n,
     639 S.W.2d 302 (Tex. 1982) ........................................................................ 10

Schlumberger Tech Corp. v. Swanson,
     959 S.W.2d 171 (Tex. 1997) ....................................................................... n.4


STATUTES AND RULES

TEX. GOV’T CODE § 25.0003(c)(1)............................................................................ 8

TEX. R. CIV. P. 166a(c) ............................................................................................ 10




	                                                         v
	                                                          		
                                 REFERENCES

    “Geheb”                  Defendant/Appellant Kevin Geheb is referred to as
                             “Geheb.”

    “TransCanada”            Plaintiff/Appellee TransCanada Keystone Pipeline, LP
                             is referred to as “TransCanada.”

    “CR [page]”              References to the Clerk’s Record are cited as “CR
                             [page].”

    “[volume]RR [page]”      References to the Reporter’s Record are cited as
                             “[volume]RR [page].”

    “Geheb’s Br. at [page]” References to the Brief of Defendant/Appellant Kevin
                            Geheb are cited as “Geheb’s Br. at [page].”




	                                        vi
	                                         		
                    STATEMENT OF THE CASE

Nature of the   Geheb initiated this case in January 2015, seeking damages
case:           resulting from TransCanada’s alleged interference with
                Geheb’s rights in a rice farming leasehold, including alleged
                damages to Geheb’s “leasehold and crop.” CR 149-72.

Trial court:    Honorable Kent Walston, 58th Judicial District Court,
                Jefferson County, Texas.

Trial court’s   In December 2016, TransCanada moved for summary
disposition:    judgment on all of Geheb’s claims, on the grounds that Geheb
                “settled, released, waived and forever discharged” all of his
                claims against TransCanada, and additionally, that Geheb had
                no evidence to support his claims, including his claim for
                “taking.” CR 438-90. On February 8, 2017, the trial court
                granted summary judgment in favor of TransCanada, ordered
                that Geheb “take nothing” by virtue of his claims against
                TransCanada, and entered a final summary judgment. CR
                1021.

	




	                                  vii
	                                   		
                              ISSUES PRESENTED

      1.     In 2013, in exchange for consideration of $81,000.00, Geheb executed

an Advance Release of Damage Claims in which he acknowledged “receipt of

payment in full and in advance” for all crop and other foreseeable damages

“attributable to or arising from [TransCanada’s] proper exercise of its rights” under

an Easement TransCanada purchased from the Landowner. In the release, Geheb

“waive[d] and agree[d] to save, defend, hold harmless and indemnify

[TransCanada]” from all claims, causes of action, and damages “which arise out of,

are connected with, or relate in any way to . . . [TransCanada’s] proper exercise of

its rights granted under the Easement,” including all crop and other foreseeable

damages. CR 473.

      Did the trial court properly grant summary judgment in favor of

      TransCanada on all of Geheb’s claims for damages to his leasehold

      and crop on the grounds that Geheb settled, released, waived, and

      forever discharged all such claims?

      2.    TransCanada obtained the Easement by purchase from the Landowner,

and did not exercise the power of eminent domain to obtain the Easement.

      Did the trial court properly grant summary judgment in favor of

      TransCanada on all of Geheb’s claims on the grounds that there was

      no evidence of a “taking?”


	                                        viii
	                                          		
                          STATEMENT OF FACTS

1.    The Pipeline.

      TransCanada owns and operates the U.S. portion of the Keystone Pipeline

System, which is comprised of approximately 2,151 miles of crude petroleum

pipelines originating in Hardisty, Alberta and traversing to U.S. Midwest markets

at Wood River and Patoka, Illinois and from Steele City, Nebraska, to Cushing

Oklahoma (“the Pipeline”). CR 56. The Pipeline delivers crude petroleum to

market hubs, where the oil is then shipped to refineries. CR 56-57. The Gulf

Coast Project is an addition to the Keystone Pipeline System that commences at

the crude petroleum supply hub at Cushing, Oklahoma, and terminates at existing

crude storage terminal facilities near Nederland and Houston, Texas. CR 57. The

Gulf Coast Project helps meet the increasing demand to transport domestic crude

supply in the Permian, Williston, Granite Wash, Niobrara, and Mississippi Lime

oil and gas producing basins. It decreases the demand for light domestic crude

from U.S. Midwest refineries due to conversion projects that rely extensively on

heavy crude supplies and pipeline capacity limitations between Cushing,

Oklahoma and the U.S. Gulf Coast. Id.




	                                       1
	                                        		
2.    The Landowner grants TransCanada an Easement on the Property.

      Geheb is a former rice farmer tenant on a tract of land (“the Property”)

owned by Michael Gaus (“the Landowner”) in Jefferson County, Texas.1 CR 173.

On November 18, 2010, in consideration for the payment of $403,920.00, the

Landowner granted TransCanada a 50-foot pipeline easement, specifically:

      a nonexclusive right-of-way and easement, fifty-feet (50’) in width,
      and temporary workspace for the purpose of laying, constructing,
      maintaining, operating, replacing, protecting and removing only one
      (1) thirty-six-inch (36”) in diameter . . . pipeline [] for the
      transportation of crude oil, natural gas, hydrocarbons, petroleum
      products and all by-products thereof over, through and across
      Grantor’s lands, situated in Jefferson County, Texas . . . together with
      the rights of ingress and egress to that easement[.]

CR 438, 459-67. Of significance to this appeal is the fact that TransCanada did

not obtain the Easement by condemnation—it obtained it by purchase from the

Landowner.

3.    TransCanada and the Landowner agree that TransCanada will not be
      responsible for payment to any tenant, and the Landowner will pay any
      compensation due the tenant.

      At the same time that the Landowner granted TransCanada the Easement,

the Landowner and TransCanada entered into a Letter Agreement in which they

agreed that (1) the $403,920.00 payment to the Landowner “constitutes payment

in full, covering all damages, loss of crops and laser leveling within the

[Easement],” (2) TransCanada will not be responsible for payment to any tenant
																																																								
1
   In 2013, the Landowner terminated the lease with Geheb for nonpayment and leased the
Property to another individual. CR 696-97; 1RR 13-14.
	                                                        2
	                                                         		
on the Property, “and any compensation due the tenant by way of the easement

and initial construction will be paid by [the Landowner],” and (3) TransCanada

will pay for any damages outside of the [Easement] that are in addition to the

damages contemplated in (1). CR 439, 468.

4.    Geheb demands advance payment from TransCanada for 2012 crop
      damage.

      Prior to the start of construction on the Property, and before he would allow

TransCanada on the Property, Geheb demanded payment from TransCanada for

damages he claimed would result to his 2012 rice crop. CR 439, 469. Geheb

calculated these damages to be $51,840.00.          CR 439, 469.       Despite the

Landowner’s agreement that “any compensation due the tenant by way of the

easement and initial construction will be paid by [the Landowner],” TransCanada

nevertheless paid Geheb the $51,840.00 (“the 2012 Payment”) he demanded as

advance compensation for crop damage in order to ensure TransCanada’s ability

to immediately access the Property. In return for TransCanada’s payment, Geheb

executed an Advance Release of Damage Claims (“the 2012 Release”). CR 439,

470-71. The 2012 Release provided, in pertinent part, that:

      In consideration of said advance payment, I/we and my/our heirs,
      executors, administrators and assigns, do hereby release and forever
      discharge [TransCanada] from any and all causes of action, suits,
      debts, claims, expenses, general damages, interest, costs and demands
      whatsoever, at law and in equity, against [TransCanada], which I/we
      ever had, have now, or which I/we or my/our Insurers, heirs,
      executors, administrators, successors or assigns hereafter can, shall or
	                                        3
	                                         		
      may have in the future, relating to the damage items listed on
      Appendix A, arising out of or in connection with, resulting or alleged
      to have resulted from, construction or surveying, over, under or on
      [the Property].

CR 470.2 The 2012 Release provided that the 2012 Payment by TransCanada

constituted “full payment and settlement, in advance, for all damages listed on the

Advance Damages Computation Form” attached to the 2012 Release. Id.

5.    Geheb demands advance payment from TransCanada for 2013 crop
      damage.

      In March 2013, Geheb again demanded payment from TransCanada for

damages he allegedly would incur in connection with construction of the Pipeline.

CR 440, 472. This time, Geheb claimed that as a result of construction delays, he

would be unable to produce his 2013 rice crop, resulting in damages that he

calculated to be $115,375.51. CR 440, 472. Once again, despite the Landowner’s

agreement that “any compensation due the tenant by way of the easement and

initial construction will be paid by [the Landowner], and after negotiating with

Geheb as to the extent and amount of his claimed damages, TransCanada paid

Geheb $81,000.00 (“the 2013 Payment”). In exchange, Geheb signed another

Advance Release of Damage Claims (“the 2013 Release”). CR 440, 473. In the

2013 Release, Geheb expressly acknowledged:

      receipt of payment in full and in advance for all tree, crop, plant,
      timber, harvest or yield loss damages, diminution in value of the
																																																								
2
   Appendix A to the 2012 Release described the damages as “Damages Rice, 50 Acres, Total
Loss 324,000 lbs. @ .16 per lb.” for a total of $51,840.00. CR 206.
	                                                        4
	                                                         		
      Property (if any), and/or any other reasonably foreseeable damages
      attributable to or arising from [TransCanada’s] proper exercise of its
      rights granted pursuant to that certain Permanent Easement and Right-
      of-Way Agreement and Construction Access Road Agreement . . .
      including, without limitation, those items listed on Appendix A
      attached hereto.

CR 473 (emphasis added). The 2013 Release further provided that:

      [Geheb] on behalf of [himself/themselves], and any other person or
      entity claiming by or through [him/they] hereby waive(s) and agree(s)
      to save, defend, hold harmless and indemnify [TransCanada] . . .
      from and against any and all claims, causes of action, suits, debts,
      expenses, general damages, interest, costs and demands whatsoever,
      at law and in equity, against [TransCanada] . . . which arise out of,
      are connected with, or relate in any way to [TransCanada’s]
      acquisition of, or Owner’s conveyance of, the Easement or
      [TransCanada’s] proper exercise of its rights granted under the
      Easement, including, but not limited to, any and all tree, crop, plant,
      timber, harvest or yield loss damages, diminution of the value of the
      Property, or any other reasonably foreseeable damages[.]

Id. (emphasis added).

6.    Geheb files suit against TransCanada.

      On January 9, 2015, Geheb filed his Original Petition against TransCanada

in the County Court at Law No. 1 of Jefferson County, Texas. CR 6-22. Then

Geheb filed his First Amended Original Petition, asserting a hodgepodge of no

less than nine claims against TransCanada for (i) taking, (ii) breach of agreement,

(iii) tortious interference, (iv) negligence, (v) fraud, duress, and/or taking of undue

advantage, (vi) common law fraud, (vii) fraudulent misrepresentation, (viii) fraud

– negligent misrepresentation, (ix) fraud – suppression of facts, (x) exemplary


	                                         5
	                                          		
damages, and (xi) attorneys’ fees. He sought a “judgment declaring [Geheb’s]

rights” in the farming leasehold, and damages stemming from TransCanada’s

alleged interference with Geheb’s “express and implied, legal and equitable, rights

to the farming leasehold.” CR 149-172. At bottom, Geheb sought additional

compensation for alleged damages directly related to TransCanada’s proper

exercise of its rights under the Easement—damages that Geheb had settled,

released, and forever discharged.

7.    Geheb seeks irrelevant discovery related to TransCanada’s status as a
      common carrier.

      Included with Geheb’s Original Petition was Plaintiff’s First Request for

Production, consisting of 40 categories of documents. CR 21, 23-26. None of the

requested documents were related to any damages Geheb might have actually

incurred, communications between the parties, or the 2012 and 2013 Payments

and Releases. See CR 23-26. Instead, all of the requests related to TransCanada’s

status as a common carrier pipeline (e.g., contracts related to the Pipeline, the

Pipeline’s operations, and filings with state and federal regulatory authorities). He

requested these despite the fact that TransCanada never filed an eminent domain

proceeding against either Geheb or the Landowner—TransCanada obtained the

Easement by purchase from the Landowner. See CR 173, 176.

      When TransCanada refused to produce the requested documents, which

were irrelevant to any issue in this case, Geheb filed a Motion to Compel. CR
	                                        6
	                                         		
300-53. Geheb argued that TransCanada damaged his leasehold and crop, and that

TransCanada “attempted to justify its action by alleging it would perform a

‘public purpose’ in transporting” crude petroleum in the Pipeline.       CR 300.

Geheb argued that because TransCanada had claimed common carrier status in

unrelated condemnation proceedings, it “must establish its right to condemn and

strict compliance with the law authorizing private property to be taken for public

use.” CR 301-02. Because TransCanada had not condemned, and did not seek to

condemn the Property against him or the Landowner, Geheb’s arguments were

nonsensical. See CR 177; 379; 382, 383-84.

      Nevertheless, Geheb persisted in aggressively seeking discovery related to

TransCanada’s status as common carrier with the right and power of eminent

domain. Geheb noticed the deposition of Louis Fenyvesi—a Director of Business

Development for TransCanada who lives and works in Canada, and who has no

personal knowledge of any information related to any of Geheb’s claims for

damages. With the notice, Geheb included a subpoena duces tecum that mirrored

his First Request for Production of Documents.      CR 178, 210-15, 227-28. In

response to TransCanada’s Motion to Quash Mr. Fenyvesi’s deposition, CR 229-

41, Geheb argued that the deposition was necessary to “test TransCanada’s bold

allegations” of “‘public purpose’ and ‘common carrier’ status’” in unrelated cases

by the “‘crucible of cross examination.’” CR 40. Geheb’s arguments continued


	                                       7
	                                        		
to make no sense for the plain reason that TransCanada had not condemned, and

did not seek to condemn, the Property.

8.     The case is transferred to district court.

       In his Petition in the County Court at Law No. 1, Geheb sought damages

stemming from TransCanada’s alleged interference with his “express and implied,

legal and equitable, rights to the farming leasehold,” and sought a “judgment

declaring [his] rights” in the farming leasehold. CR 14, 22. A leasehold is an

interest in real property. The County Court at Law No. 1 lacks jurisdiction over

disputes regarding the existence of a leasehold and questions of title to real

property.3 TransCanada, therefore, filed a Plea to the Jurisdiction, and included in

the motion as an additional basis that damages Geheb sought exceeded the

jurisdictional limit of the County Court at Law No. 1. See CR 248-54, 267-70

TEX. GOV’T CODE § 25.0003(c)(1).

       Geheb did not dispute that his claims involved questions regarding the

existence of a leasehold and title to real property, or that he sought damages in

excess of the County Court at Law No. 1’s jurisdiction. See CR 295-99. Instead,

Geheb argued that “TransCanada has repeatedly judicially admitted that [the

County Court at Law No. 1] has jurisdiction, under § 21.001 of the Texas Property

																																																								
3
   See, e.g., Doggett v. Nitschke, 498 S.W.2d 339, 339 (Tex. 1973) (“A county court does not
have jurisdiction to try questions of title to land.”); Chambers v. Pruitt, 241 S.W.3d 679, 684
(Tex. App.—Dallas 2007, no pet.) (“District courts generally have exclusive jurisdiction to
determine title to real property.”).
	                                                        8
	                                                         		
Code, of matters involving TransCanada’s action as a purported common

carrier . . . with, among other things, the right and power to ‘enter on and

condemn the land, rights-of-way, easements and property . . . necessary for the

construction, maintenance, or operation of the common carrier pipeline,’” once

again citing unrelated condemnation proceedings. CR 296-97; see also CR 357.

Again, Geheb’s argument made no sense, as TransCanada was not claiming that it

was a common carrier with the right of eminent domain and had not instituted

condemnation proceedings in connection with the Easement.

      On January 13, 2016, the County Court at Law No. 1 transferred this case to

the 60th Judicial District Court of Jefferson County, Texas “as required by §

21.002 of the Texas Property Code,” finding that “this case involves issues and

matters that cannot be fully adjudicated in this Court.” CR 366.

9.    The trial court grants summary judgment in favor of TransCanada on
      Geheb’s claims.

      In December 2016, TransCanada moved for summary judgment on all of

Geheb’s claims against it (“Summary Judgment Motion”). CR 438-90.             On

February 8, 2017, the trial court granted summary judgment in favor of

TransCanada, ordered that Geheb “take nothing” by virtue of his claims against

TransCanada, and entered a final summary judgment.             CR 1021. Geheb

subsequently filed a Motion for Leave to File Amended Petition to Add

Responsible Third Party, a Motion to Reconsider, and a Request for Findings of
	                                       9
	                                        		
Fact and Conclusions of Law, all of which the trial court denied. CR 987-89,

1018-20, 1113, 1114, 1121-22, 1130. This appeal followed.

                           STANDARD OF REVIEW

      A trial court’s grant of summary judgment is reviewed de novo. Becon

Constr. Co. v. Alonso, 444 S.W.3d 824, 828 (Tex. App.—Beaumont 2014, pet.

denied) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215

(Tex. 2003)). To prevail on a traditional motion for summary judgment, the

movant must conclusively negate at least one essential element of each of the

plaintiff’s causes of action or conclusively establish each element of an

affirmative defense.    TEX. R. CIV. P. 166a(c); Long Distance Int’l, Inc. v.

Telefonos de Mexico, S.A. de C.V., 49 S.W.3d 347, 250-51 (Tex. 2001). The

burden is on the movant to show that no genuine issue of material fact exists, and

that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Roskey v.

Texas Health Facilities Comm’n, 639 S.W.2d 302, 303 (Tex. 1982).               If the

movant establishes its entitlement to summary judgment, the burden shifts to the

nonmovant to raise a genuine issue of material fact. M.D. Anderson Hosp. &

Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).

                       SUMMARY OF THE ARGUMENT

      TransCanada purchased a pipeline easement from the Landowner. In 2012

and again in 2013, Geheb, a rice farmer tenant on the Property, demanded advance


	                                        10
	                                         		
payment from TransCanada for alleged crop damages and other damages before

he would allow TransCanada on the Property. Although TransCanada had a

written agreement with the Landowner that TransCanada would not be responsible

for payment to any tenant on the Property, and that “any compensation due the

tenant by way of the easement and initial construction will be paid by [the

Landowner],” TransCanada nevertheless paid Geheb in order to ensure

TransCanada’s ability to immediately access the Property.

      In exchange for the considerable consideration TransCanada paid to Geheb

in 2013, Geheb executed an Advance Release of Damage Claims.              In it, he

acknowledged “receipt of payment in full and in advance” for all crop damages

and other reasonably foreseeable damages attributable to TransCanada’s exercise

of its rights under the Easement. Geheb also expressly waived and agreed to hold

TransCanada harmless from all claims, causes of actions, damages, and demands

whatsoever arising out of TransCanada’s exercise of its rights under the Easement,

including all crop damages and other reasonably foreseeable damages.

      In this lawsuit, Geheb seeks additional compensation for alleged damages

directly related to TransCanada’s proper exercise of its rights under the Easement.

These are reasonably foreseeable damages that Geheb settled, released, and

forever discharged. Geheb has never disputed that his claims fall squarely within

the claims he released in the 2013 Release, nor has he ever challenged the validity


	                                       11
	                                        		
or enforceability of the 2013 Release. Moreover, Geheb’s claim for 2014 crop

damages is patently frivolous, as it is undisputed that the Landowner terminated

Geheb’s leasehold in 2013 for nonpayment. The trial court, therefore, properly

granted summary judgment in favor of TransCanada on the grounds that Geheb

settled and released all of his claims.

      Geheb devotes nearly the entirety of his brief to arguing, as he did in the

trial court, that TransCanada failed to establish it is a common carrier with the

right and power of eminent domain. Based on this, Geheb claims he should be

allowed irrelevant discovery and the denial of TransCanada’s summary judgment

motion. This argument is nonsensical—TransCanada did not obtain the Easement

by condemnation.

       The record conclusively establishes that TransCanada obtained the

Easement by consensual purchase from the Landowner, and not through

condemnation. Accordingly, it is irrelevant whether TransCanada is a common

carrier with the power of eminent domain. The trial court properly rejected

Geheb’s requests for irrelevant discovery and his argument that the trial court was

required to make a preliminary finding as to TransCanada’s common carrier status

under the Texas Natural Resources Code.




	                                         12
	                                          		
                                    ARGUMENT

I.    GEHEB SETTLED, RELEASED, WAIVED, AND FOREVER DISCHARGED ALL
      OF HIS CLAIMS AGAINST TRANSCANADA.

      A.     A Release of a Claim Extinguishes that Claim.

      “‘A release is an agreement or contract in which one party agrees that a

legal right or obligation owed by the other party is surrendered.’” Reytec Constr.

Resources, Inc. v. Baptist Hosps. of Se. Tex., No. 09-15-00085-CV, 2016 WL

6900874, *8 (Tex. App.—Beaumont Nov. 23, 2016, no pet.) (citation omitted).

See also Henry v. Masson, 333 S.W.3d 825, 844 (Tex. App.—Houston [1st Dist.]

2010, no pet.) (“A release is a writing which provides that a duty or obligation

owed to one party to the release is discharged immediately or upon the occurrence

of a condition.”). “Generally, a release is a bar to any right of action growing out

of the matter discharged, conclusively estopping the releasor from making further

efforts to enforce the claim released.” Franks v. Brookshire Bros., Inc., 986

S.W.2d 375, 377 (Tex. App.—Beaumont 1999, no pet.) (citing Hart v. Traders &

Gen. Ins. Co., 189 S.W.2d 493, 494 (Tex. 1945)); see also Naik v. Naik, 438

S.W.3d 166, 174 (Tex. App.—Dallas 2014, no pet.) (“A release is a contractual

arrangement that operates as a complete bar to any later action based upon matters

covered in the release.”).4 Accordingly, “[a] release of a claim or cause of action


																																																								
4
   “Texas law favors and encourages voluntary settlements and orderly dispute resolution.”
Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex. 1997).
	                                                        13
	                                                         		
extinguishes the claim or cause of action.” Henry, 333 S.W.3d at 844 (citing

Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993)).

      B.     Geheb’s Claims Fall Squarely within the Express Language of
             the 2013 Release.

             1.       Geheb ignores the 2013 Release.

      The first argument in TransCanada’s Summary Judgment Motion was that

“[Geheb] Settled, Released, Waived and Forever Discharged All Claims Against

Keystone.” CR 443-47. In his brief, however, Geheb intentionally glosses over

the 2013 Release and its express provisions that bar his claims. In fact, Geheb

only mentions the 2012 and 2013 Releases in his Brief in three places. The first is

in a footnote in his Statement of the Case, in which he states:

      While the pipeline construction was ongoing, TransCanada did make
      a payment for some, but not all, of Geheb’s 2012 rice crop losses,
      which Geheb compromised and accepted, and TransCanada later
      made a payment for some, but not all, of Geheb’s 2013 rice crop
      losses, which Geheb compromised and accepted. TransCanada
      prepared and had Geheb sign release when each of the 2012 and 2013
      rice crop loss payments were made. Geheb, in his action, sought no
      further compensation for 2012 or 2013 crop losses.

Geheb’s Br. at n.3.

      The next mention is in his Statement of Facts timeline, in which he states

that “TransCanada pays Geheb for a portion of Geheb’s 2012 rice crop already

planted by Geheb,” and “TransCanada pays Geheb for a portion of Geheb’s 2013

rice crop which Geheb could not plant due to pipeline construction.” Id. at 5.


	                                        14
	                                         		
Finally, in his Argument and Authorities section, Geheb quotes language from the

2013 Release regarding “reasonably foreseeable damages attributable to or

arising from [TransCanada’s] proper use of its rights granted pursuant to that

certain Permanent Easement[.]”        He then argues that the Letter Agreement

between the Landowner and TransCanada conflicted with TransCanada’s

obligation to “correct level and restore to original ground level,” and, “therefore, it

could not have been a proper use of the rights granted by the recorded easement[.]”

He neither offers any authority for that proposition, nor explains why this

purported conflict made TransCanada’s use of the Easement improper. He also

argues that the damages of not so leveling could not have been foreseeable by him,

but fails to offer any authority for this proposition. Id. at 11. In total, Geheb’s

“legal argument” is unsupported by authority or competent evidence.

             2.     The 2013 Release bars Geheb’s claims.

      To effectively release a claim, the releasing instrument must “mention” the

claim to be released.     Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co. of

Pittsburgh, Pa., 20 S.W.3d 692, 697-98 (Tex. 2000) (releasing “all demands,

claims or causes of action of any kind whatsoever, statutory, at common law or

otherwise, now existing or that might arise hereafter, directly or indirectly

attributable to the rendition [of] professional legal services” during a certain time

period). It is not necessary, however, for the parties to “anticipate and identify


	                                         15
	                                          		
each potential cause of action relating to the release’s subject matter.” Id. at 698

(citing Memorial Med. Center v. Keszler, 943 S.W.2d 433, 435 (Tex. 1997)).

Rather, “a valid release may encompass unknown claims and damages that

develop in the future.” Id.; see also D.R. Horton-Tex., Ltd. v. Savannah Props.

Assocs., L.P., 416 S.W.3d 217, 226 (Tex. App.—Fort Worth 2013, no pet.)

(“Although releases include claims existing at the time of execution, they may

also include unknown claims and damages that develop in the future.”).

      The reason Geheb glosses over the 2013 Release is because it is fatal to his

claims. In the 2013 Release, Geheb expressly acknowledged:

      receipt of payment in full and in advance for all tree, crop, plant,
      timber, harvest or yield loss damages, diminution in value of the
      Property (if any), and/or any other reasonably foreseeable damages
      attributable to or arising from [TransCanada’s] proper exercise of
      its rights granted pursuant to that certain Permanent Easement and
      Right-of-Way Agreement and Construction Access Road
      Agreement . . . including, without limitation, those items listed on
      Appendix A attached hereto.

CR 473 (emphasis added). The 2013 Release further provided that Geheb:

      on behalf of [himself/themselves], and any other person or entity
      claiming by or through [him/they] hereby waive(s) and agree(s) to
      save, defend, hold harmless and indemnify [TransCanada] . . . from
      and against any and all claims, causes of action, suits, debts,
      expenses, general damages, interest, costs and demands whatsoever,
      at law and in equity, against [TransCanada] . . . which arise out of,
      are connected with, or relate in any way to [TransCanada’s]
      acquisition of, or Owner’s conveyance of, the Easement or
      [TransCanada’s] proper exercise of its rights granted under the
      Easement, including, but not limited to, any and all tree, crop, plant,


	                                       16
	                                        		
      timber, harvest or yield loss damages, diminution of the value of the
      Property, or any other reasonably foreseeable damages[.]

Id. (emphasis added). The 2013 Release clearly and unambiguously included both

existing claims and potential future claims related to TransCanada’s construction

activities on the Easement granted to it by the Landowner. Significantly, Geheb

never challenged the validity or enforceability of the 2013 Release.

      All of Geheb’s claims arise out of TransCanada’s alleged damage to his

crops and failure to restore the leasehold to its condition in connection with

TransCanada’s exercise of its rights under the Easement. Thus, they fall squarely

within the express language of the 2013 Release. Geheb specifically asserted in

his Petition that he was the rice farmer tenant on the Property “until 2013, when

[TransCanada] caused damages to [Geheb’s] leasehold and crop[.]” CR 151. The

plain and unambiguous language of the 2013 Release releases TransCanada from

“any and all claims, causes of action, suits, debts, expenses, general damages,

interest, cost and demands whatsoever” that arise out of or relate to

TransCanada’s “proper exercise of its rights granted under the Easement,”

including all crop damages, diminution in value of the Property, or “any other

reasonably foreseeable damages.” CR 473. Geheb’s claims fall squarely within

the language of the 2013 Release. In fact, Geheb has never asserted that his

claims do not fall within the language of the 2013 Release.



	                                       17
	                                        		
      Moreover, in his brief, Geheb admits that he compromised and settled his

claims for 2012 and 2013 crop losses. Geheb’s Br. at n.3 (“Geheb, in his action,

sought no further compensation for 2012 or 2013 crop losses.”). According to

Geheb, he initiated this lawsuit “to recover his damages for TransCanada’s failure

to correct level and restore to original ground level so that water may pass and

flow undisturbed and unimpeded across Geheb’s rice farm leasehold (i.e., laser-

level) upon completion of TransCanada’s pipeline construction and for 2014 rice

crop losses resulting from TransCanada’s failure to restore Geheb’s leasehold to

such leveled condition necessary for rice farming.” Id. at 1 (emphaseiadded)

(footnote omitted). It is undisputed, however, that the Landowner terminated

Geheb’s lease in 2013 for nonpayment, and Geheb did not lease the Property in

2014. CR 696-97.

      The 2013 Release bars all of Geheb’s claims as a matter of law. Geheb did

not even attempt to raise a fact issue as to the validity or enforceability of the 2013

Release. Accordingly, the trial court properly granted TransCanada’s Summary

Judgment Motion and entered a take-nothing judgment on all of Geheb’s claims.

II.   TRANSCANADA DID NOT EXERCISE THE POWER OF EMINENT DOMAIN TO
      OBTAIN THE EASEMENT ON THE PROPERTY THAT GEHEB LEASED FOR
      RICE FARMING.

      Rather than address the bases on which the trial court granted

TransCanada’s Summary Judgment Motion, Geheb devotes nearly the entirety of


	                                         18
	                                          		
his Brief to addressing irrelevant issues related to TransCanada’s status as a

common carrier with the right and power of eminent domain under the Texas

Natural Resources Code—a power that TransCanada did not exercise to obtain the

Easement. See Geheb’s Br. at pp. 11-21. Specifically, Geheb argues that:

      --    TransCanada failed to establish its common carrier bona fides (Id. at
            pp. 11-17);

      --    Tar sands are not considered to be crude petroleum under the Texas
            Natural Resources Code (Id at p.17);

      --    TransCanada is required to pay Geheb just compensation for its
            interference with Geheb’s enjoyment of the Property in the exercise
            of its eminent domain rights as a common carrier (Id. at p.18);

      --    The trial court failed to make a preliminary inquiry as to
            TransCanada’s common carrier status (Id. at pp. 19-20); and

      --    The trial court failed to afford Geheb an opportunity to conduct
            discovery as to TransCanada’s common carrier status (Id.at pp. 20-
            21).

      As TransCanada repeatedly urged in the trial court, none of these issues has

any relevance in this case for the simple and obvious reason that no taking ever

occurred. As Geheb acknowledges, TransCanada never exercised the right of

eminent domain to condemn the Easement on the Property—it obtained it by

purchase from the landowner. See Geheb’s Br. at 19 (“TransCanada failed to ever

institute proceedings to condemn[.]”).




	                                        19
	                                         		
      A.     The Landowner Granted the Easement to TransCanada—There
             Has Been No “Taking.”

       “An owner of land has title and is entitled to possession of the premises.”

Mobil Pipe Line Co. v. Smith, 860 S.W.2d 157, 159 (Tex. App.—El Paso 1993,

writ dism’d w.o.j.). “As the owner, that party may grant rights to other parties to

use either the surface or subsurface.” Id. “If a lease is given to farm the land, the

right to possession is divested from the owner during the term of the lease.” Id.

Even when the owner leases the surface, however, “the owner retains a right to

enter into agreements that will affect the surface.”

      In Geheb’s cited authority, Mobil Pipe Line, the landowner executed a

right-of-way agreement in which she conveyed an easement to Mobil to “lay,

repair, maintain, operate and remove one 14” pipe line” across a tract of land on

which her nephew farmed under a lease at will. Id. at 158. The nephew did not

join in the easement, and denied Mobil access across the property. Id. Mobil

sought an injunction to obtain access over its right-of-way, which the trial court

denied. Id. Reversing the trial court’s denial of Mobil’s request for injunctive

relief, the court of appeals recognized that “the owner of the right-of-way has the

dominate estate.” Id. at 159 (citing Phillips Pipe Line Co. v. Razo, 420 S.W.2d

691, 695 (Tex. 1967)). The court further noted that “[a]ny grant of an easement

necessarily carries with it the right to do such things as are reasonably necessary

for the full enjoyment of the easement granted.” Id. (citing Harris v. Phillips Pipe
	                                        20
	                                         		
Line Co., 517 S.W.2d 361 (Tex. Civ. App.—Austin 1974, writ ref’d n.r.e.)). The

landowner, having granted an easement for a pipeline, has no right to make use of

the surface that might interfere with the use of such easement. Id. (citing Razo,

420 S.W.2d at 695). Thus, “[i]f the landowner cannot interfere with the full

enjoyment of the easement granted, certainly the lessee, who takes with

knowledge that landowner retains rights to grant a right-of-way, may not

interfere with the rights granted.” Id. at 159-60 (emphasis added).

      The same is true in this case. TransCanada obtained the Easement from the

Landowner, and is undeniably the owner of the dominant estate on the Property.

As such, TransCanada had the contractual right to enter onto the Property and

complete the construction and installation of the Pipeline pursuant to the terms of

the Easement. TransCanada’s construction and installation of the Pipeline was not

only reasonably necessary for its full enjoyment of the Easement, it was the sole

purpose for which TransCanada and the Landowner executed the Easement.

      In short, there was no “taking.” In order to enter the Property and construct

its Pipeline, TransCanada was not required to establish that it was a common

carrier under the Texas Natural Resources Code, and that the Pipeline was “to or

for the public for hire.” See Geheb’s Br. at 11-16. Nor was TransCanada required

to show that the tar sands to be transported through the Pipeline are considered

“crude petroleum” under the Texas Natural Resources Code.             See id. at 17.


	                                       21
	                                        		
Likewise, TransCanada did not have an obligation to provide Geheb with

additional compensation for a “taking” that did not occur. See id. at 18.

      For these same reasons, Geheb’s argument that the trial court failed “to

make preliminary inquiry into common carrier status” is equally meritless. See id.

at 19-21 (acknowledging that TransCanada never instituted “proceedings to

condemn Geheb’s possessory interest”). No authority exists to support Geheb’s

contention that the trial court was required to make a preliminary finding as to

TransCanada’s status as an “entity with ‘eminent domain authority,’” where

TransCanada’s right to enter the Property and construct the Pipeline was purely

contractual and not obtained through condemnation. The discovery Geheb sought

relating to TransCanada’s common carrier status was entirely irrelevant to any

issue in this case, its only purpose being to harass TransCanada.



                        CONCLUSION AND PRAYER

      For all of the foregoing reasons, TransCanada Keystone Pipeline, LP

respectfully requests that the Court affirm the trial court’s judgment, and award

TransCanada such other and further relief to which it may be justly entitled.




	                                        22
	                                         		
               Respectfully submitted,

               ZABEL FREEMAN


          By: ____/s/ Thomas A. Zabel______
                Thomas A. Zabel
                State Bar No. 22235500
                James A. Freeman
                State Bar No. 00796580
                Nancy H. Elliott
                State Bar No. 08701240
                1135 Heights Blvd.
                Houston, Texas 77008
                Telephone: (713) 802-9117
                Facsimile: (713) 802-9114
                tzabel@zflawfirm.com
                jfreeman@zflawfirm.com
                nelliott@zflawfirm.com


               GERMER, P.L.L.C.
               Karen Bennett
               State Bar No. 21702640
               P.O. Box 4915
               Beaumont, Texas 77704
               Telephone: (409) 654-6700
               Facsimile: (409) 835-2115
               krbennett@germer.com

           ATTORNEYS FOR APPELLEE
           TRANSCANADA KEYSTONE
           PIPELINE, LP




	   23
	    		
                     CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify
that this brief was prepared in Times New Roman 14-point font, and contains
5,273 words, exclusive of the portions set forth in Rule 9.4(i)(1), and that this
number was calculated using the word count program of Microsoft Word, which
is the program that was used to prepare this document.

                                             /s/ Nancy H. Elliott______
                                             Nancy H. Elliott




                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Brief of
Appellee TransCanada Keystone Pipeline, LP has been served electronically and
via email on the following counsel of record this 13th day of December, 2017:

Robert Keith Wade
LAW OFFICES OF ROBERT KEITH WADE
650 North Ninth Street at McFaddin
Beaumont, Texas 77702
rwade-law@sbcglobal.net


                                             /s/ Nancy H. Elliott__________
                                             Nancy H. Elliott




	                                      24
	                                       		
