                   No. 01-14-00723-CV
           __________________________________
                                                     FILED IN
                                              1st COURT OF APPEALS
          IN THE COURT OF APPEALS FOR THE HOUSTON, TEXAS
        FIRST DISTRICT OF TEXAS AT HOUSTON    5/14/2015 5:01:50 PM
           __________________________________ CHRISTOPHER
                                                      Clerk
                                                              A. PRINE


                   THE STATE OF TEXAS,
                          Appellant,
                               v.
    KNA PARTNERS, INC., A TEXAS JOINT VENTURE,

                        Appellee.
           __________________________________

               SUR-REPLY OF APPELLEE
           __________________________________

               Trial Court Cause No. 1011330
   On Appeal from County Civil Court at Law Number Three
                    Harris County, Texas
        The Honorable Linda Storey, Judge Presiding
         __________________________________

                                    VINSON & ELKINS L.L.P.
                                    H. Dixon Montague
                                    State Bar No. 14277700
                                    e-mail: dmontague@velaw.com
                                    Billy C. Dyer
                                    Catherine B. Smith
                                    David G. Wall
                                    1001 Fannin Street, Suite 2500
                                    Houston, Texas 77002-6760
                                    Telephone: 713.758.2086
                                    Facsimile: 713.615. 5461
Attorneys for Appellee KNA Partners, Inc., A Texas Joint Venture
                                              TABLE OF CONTENTS
                                                                                                                     Page
TABLE OF AUTHORITIES ................................................................................. ii

I.      At Trial, the State Characterized KNA’s Driveways as Appurtenant
        Easements. ....................................................................................................1

II.     The Judgment Is Supported by the State’s Agreement, Stipulation, or
        Concession....................................................................................................3

        A.       The State’s Attorney’s Unequivocal Statement to the Trial
                 Court Constitutes an Agreement, Stipulation, or Concession. .............3

        B.       Alternatively, No Pleading Is Required Because the State Tried
                 the Driveway Issue by Consent. ..........................................................5

III.    The State Acknowledges that Payment Is Required Prior to Passage of
        Title. .............................................................................................................6

IV.     The State’s Appeal Is Moot Because It Is Undisputed That the State
        Voluntarily Restored the Driveways. ............................................................7

CONCLUSION AND PRAYER.............................................................................8

CERTIFICATE OF COMPLIANCE.....................................................................10

CERTIFICATE OF SERVICE..............................................................................11




                                                             i
                                  TABLE OF AUTHORITIES
                                                                                                  Page(s)
Cases

Camarena v. Texas Employment Comm’n,
   754 S.W.2d 149 (Tex. 1988) .......................................................................... 8

City of Houston v. Texan Land and Cattle Co.,
     138 S.W.3d 382 (Tex. App.—Houston [14th Dist.] 2004, no pet.).................. 6

Employees Finance Co v. Lathram,
    369 S.W.2d 927 (Tex. 1963) .......................................................................... 7

Gen. Land Office of Tex. v. OXY U.S.A., Inc.,
     789 S.W.2d 569 (Tex. 1990) .......................................................................... 8

Highland Church of Christ v. Powell,
    640 S.W.2d 235 (Tex. 1982) .......................................................................... 8

Miga v. Jensen,
    96 S.W.3d 207 (Tex. 2002)............................................................................ 7

Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Martinez,
     800 S.W.2d 331 (Tex. App.—El Paso 1990, no writ)..................................4, 5

Shepherd v. Ledford,
    926 S.W.2d 405 (Tex.App.—Fort Worth 1996),
    aff’d, 962 S.W.2d 28 (Tex. 1998)................................................................... 5

Southwestern Resolution Corp. v. Watson,
     964 S.W2d 262 (Tex. 2003) ........................................................................... 6

St. Louis, A. & T. Ry. Co. v. Henderson,
     86 Tex. 307, 24 S.W. 381 (1893) ................................................................... 6

State v. Meyers,
     403 S.W.2d 366 (Tex. 1966) .......................................................................... 1




                                                     ii
Constitutions, Rules, and Statutes

Texas Constitution,
    art. I, § 17 ...................................................................................................... 6

       art. II, § 1 ....................................................................................................... 8

Texas Property Code § 21.042(d)........................................................................2, 5

Texas Rules of Civil Procedure,
    Rule 11 .......................................................................................................... 5

       Rule 67 .......................................................................................................... 6

Other Authorities
73 Am. Jur. 2d Stipulations § 1 (1974)................................................................... 5

http://www.merriam-webster.com/dictionary/restore ............................................. 4




                                                            iii
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

      Appellee files this Sur-reply to respond to the State’s Reply Brief. This case

is set for submission without oral argument on May 19, 2015.

I.    AT TRIAL, THE STATE CHARACTERIZED KNA’S DRIVEWAYS                          AS
      APPURTENANT EASEMENTS.

      The State agrees in its Reply brief that KNA “has an easement of access” to

the abutting roadway, but asserts that KNA’s “nine driveways or curb cuts do not

constitute easements appurtenant.” Reply 2. The State contends that none of

KNA’s cases “support the proposition that curb cuts constitute easements

appurtenant,” when that in act is exactly what they are. See Reply 4. State v.

Meyers, a Texas Supreme Court case cited by KNA, recognizes that “abutting

property owners have certain private rights in existing streets and highways . . .

[and] the most important of these private rights is the right of access to and from

the highway.” State v. Meyers, 403 S.W.2d 366, 370-71 (Tex. 1966). The Texas

Supreme Court expressly referred to this right of access as “an easement

appurtenant to the abutting land.” Id. Emphasis added.

      Not only does the Texas Supreme Court authority refer to a driveway access

as an easement appurtenant, but the State’s counsel also agreed with that legal

description when it referred to the driveways during the trial. As the State’s

counsel explained to the trial court:



                                         1
               The owner has the right of egress and ingress, access,
               onto and off of their property. . . . The analysis the courts
               have employed is, it’s total access from the subject
               property to the right-of-way and it has the right of access
               to the – they have an easement appurtenant to the
               right-of-way.

3 RR 81 (emphasis added); see also 6 RR 127-28; 8 RR 189.

         The State asserts in a footnote that testimony by Peter Boecher and John

Hudson at trial that KNA held appurtenant easements in the driveways is

“conclusory, unreliable, and misstatements of the law… and no evidence.” Reply

7 n.1.     But, the State never made any such objection at trial to that elicited

testimony, and in fact acknowledged the characterization by also referring to the

right of access through the driveways as an easement appurtenant in its cross-

examination of Boecher and Mark Sikes, KNA’s appraisal expert. See, e.g. 6 RR

128; 8 RR 189.

         The only manner by which an abutting property owner gains access to a

public street is by a curb cut, nine of which were needed in the case of KNA’s

property to support its highest and best use. If the access is altered (i.e., by loss of

curb cuts), the property owner has the right to pursue a claim for that loss as

provided by the Legislature in 2011 in § 21.042(d) of the Texas Property Code.

TEX. PROP. CODE § 21.042(d).




                                            2
II.   THE JUDGMENT IS SUPPORTED                BY    THE   STATE’S     AGREEMENT,
      STIPULATION, OR CONCESSION.

      A.     The State’s Attorney’s Unequivocal Statement to the Trial Court
             Constitutes an Agreement, Stipulation, or Concession.

      It is undisputed that the State agreed to restore all nine of the driveways.

But, the State claims that it had no “agreement” or “stipulation” with KNA

regarding restoration of the nine driveway access connections. Reply 7. The State

does acknowledge that it “represented both before and during trial that its project

included reconstruction of the nine driveway access connections.” Id. The State

made this representation with the intent that KNA rely on it, which it did.

      In connection with pretrial stipulations, the trial court expressly asked about

the curb cuts:

      THE COURT:         All the curb cuts were included in that [the
      taking]?

      MR. MONTAGUE: Yes. The curb cuts were included in the taking.

      THE COURT: We are all talking about curb cuts.

      MR. MONTAGUE: If the curb cuts were included in the taking. The
      State, if you go out there today, has reestablished some of the curb
      cuts. It’s a consequence of how close the taking is now to the
      building. Those curb cuts really offer no viable access in and out of
      the property for the types of traffic that the office/warehouse facility
      serves.

      THE COURT: Is it an agreed or a disputed fact that these buildings
      are usable or not usable anymore?

      MR. MONTAGUE: We have agreed to a stipulation as I think, Your
      Honor, that as a consequence of the taking, the improvements on the

                                          3
       property, correct me if I’m wrong, Mr. Brocato, the improvements on
       the property after the taking no longer are viable and must be raised.

       THE COURT: Okay. And is that an agreed fact?

       MR. BROCATO: That’s an agreed fact, Your Honor.

       THE COURT: Why did ya’ll go put curb cuts back then for, I guess,
       whatever somebody might tear down the buildings and rebuild?

       MR. BROCATO: They can redevelop the site.

       THE COURT: That’s what I’m saying. Okay. So, it can be
       redeveloped with buildings in a different location, configuration or
       whatever?

       MR. BROCATO: Right. And we’ll put all the curb cuts back.

3 RR 7-8 (emphasis added).

       The State thus represented on the record to the trial court that all of the curb

cuts would be restored. 1 3 RR 8. While it is true that the parties did not make a

formal stipulation about the curb cuts/driveways to the trial court, the trial court

could properly consider the material representations made by the State’s attorney

on the record, in open court.

       A “stipulation” is an agreement, admission, or concession made in a judicial

proceeding by the parties or their attorneys, respecting some matter incident

thereto. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Martinez, 800 S.W.2d 331,

1
        The State’s engineer witness, Robert Scott Davis, testified in that same pre-trial hearing
that TxDot made the decision to “leave [the nine driveways] restored.” 3 RR 71-72. The verb
“restore” means (1) to give back (someone or something that was lost or taken); (2) to return
(someone or something); (3) to put or bring (something) back into existence or use; (4) to return
(something) to an earlier or original condition by repairing it, cleaning it, etc. See
http://www.merriam-webster.com/dictionary/restore.
                                                4
334 (Tex. App.—El Paso 1990, no writ) (citing 73 Am. Jur. 2d Stipulations § 1, at

536 (1974)).   In the National Union case, the court held that the appellant’s

attorney’s statements to the court regarding wage rate in a workers’ compensation

case should be construed as an “agreement or stipulation” within the contemplation

of Rule 11 of the Texas Rules of Civil Procedure. Rule 11 and its mandate

encompass concessions made by counsel in trial court. See Shepherd v. Ledford,

926 S.W.2d 405, 410 (Tex.App.—Fort Worth 1996), aff’d, 962 S.W.2d 28 (Tex.

1998) (applying Rule 11 to stipulations which included a “concession” by

counsel). Certainly, the State’s attorney’s unequivocal statement to the trial court

on the record constitutes an agreement, stipulation, or concession. And KNA

relied on it; otherwise, it would have pursued a claim for a material impairment of

access. TEX. PROP. CODE § 21.042(d).

      B.    Alternatively, No Pleading Is Required Because the State Tried
            the Driveway Issue by Consent.

      KNA’s land planner, Peter Boecher, prepared a drawing showing that all

nine driveways would be restored “After the Taking,” and that Exhibit 10 was pre-

admitted for the trial of this case without any objection from the State. 4 RR 96;

see 16 RR DX10. As outlined in KNA’s Brief of Appellees, numerous witnesses

testified about KNA’s nine curb cuts/driveways and the value that those driveways

added to the property. Br. App’ee 16-18. When issues not raised by the pleadings

are tried by express or implied consent of the parties, they shall be treated in all
                                         5
respects as if they had been raised in the pleadings. TEX. R. CIV. P. 67; see also

Southwestern Resolution Corp. v. Watson, 964 S.W2d 262, 264 (Tex. 2003)

(holding unpleaded affirmative defense of payment on a note was tried by consent

when the opposing party did not object to testimony about whether payment was

made).

III.   THE STATE ACKNOWLEDGES         THAT   PAYMENT IS REQUIRED PRIOR         TO
       PASSAGE OF TITLE.

       The Texas Constitution provides that “No person’s property shall be taken,

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

being first made, unless by consent of such person; and when taken, except for the

use of the state, such compensation shall be first made or secured by a deposit of

money.”     TEX. CONST. art. I, § 17 (emphasis added).          The payment of

compensation is a condition precedent to the right to take and use, and title does

not vest until payment is made. St. Louis, A. & T. Ry. Co. v. Henderson, 86 Tex.

307, 312, 24 S.W. 381, 384 (1893); see also City of Houston v. Texan Land and

Cattle Co., 138 S.W.3d 382, 392 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

The State agrees that in condemnation that title “does not pass until payment is

made.” Reply 5. The State argues, however, that payment does not include

reconstruction of access connections because such reconstruction “was not part of

the compensation.” Id. at 6. The State argues that compensation in condemnation

must only be money damages based on fair market value. See id. But, the State
                                        6
can point to no authority that excludes compensation “in kind” compensation (i.e.,

the restoration of the curb cuts), particularly where that compensation has been

agreed to by the property owner.        Moreover, to so hold would foreclose a

condemning authority’s opportunity to make physical modifications to one’s

property to lessen the damages caused by the condemnation as part of the

consideration which is to no one’s benefit.

IV.      THE STATE’S APPEAL IS MOOT BECAUSE IT IS UNDISPUTED THAT               THE
         STATE VOLUNTARILY RESTORED THE DRIVEWAYS.

         It is undisputed that all nine driveways have been reconstructed. But, the

State still claims that there is still an existing controversy because the judgment

makes passage of title subject to the return of the driveways. However, the State

restored all nine driveways voluntarily and without explicitly reserving the right to

challenge the recitations in the judgment regarding the passage of title – as it

represented to KNA (and the trial court) that it would do both before and during

trial.

         How is the State’s conduct any different than a judgment debtor who

voluntarily pays the judgment against him without explicitly reserving the right to

appeal? It is a settled rule of law that when a judgment debtor voluntarily pays and

satisfies a judgment rendered against him, the cause becomes moot. Employees

Finance Co v. Lathram, 369 S.W.2d 927, 930 (Tex. 1963). The judgment debtor

thereby waives his right to appeal and the case must be dismissed. See Miga v.
                                          7
Jensen, 96 S.W.3d 207, 211 (Tex. 2002) (requiring judgment debtor who pays

judgment to express an intent to pursue his appeal); Highland Church of Christ v.

Powell, 640 S.W.2d 235, 236 (Tex. 1982) (noting that expressly reserving the right

to appeal when the judgment is paid is the safest course of action).

        The State restored all nine driveways without expressly reserving its right to

appeal the recitations in the judgment relating to the restoration of those driveways.

It is a fundamental tenet that this Court cannot decide moot controversies. Gen.

Land Office of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 570-72 (Tex. 1990);

Camarena v. Texas Employment Comm’n, 754 S.W.2d 149, 151 (Tex. 1988). This

prohibition is rooted in the Texas Constitution’s separation of powers doctrine,

which prohibits courts from rendering advisory opinions. See TEX. CONST. art. II,

§ 1. Because the State voluntarily restored the driveways without reserving any

appellate rights, this appeal should be alternatively dismissed for want of

jurisdiction.

                          CONCLUSION AND PRAYER

        For all the reasons stated above and in KNA’s Brief of Appellee, the Court

should affirm the judgment of the trial court or alternatively dismiss the appeal as

moot.




                                           8
Respectfully submitted,

VINSON & ELKINS L.L.P.


/s/ H. Dixon Montague
H. Dixon Montague
State Bar No. 14277700
dmontague@velaw.com
Billy C. Dyer
State Bar No. 06312580
bdyer@velaw.com
Catherine B. Smith
State Bar No. 03319970
csmith@velaw.com
David G. Wall
State Bar No. 25060788
dwall@velaw.com
1001 Fannin Street, Suite 2500
Houston, Texas 77002-6760
Telephone: 713.758.2086
Facsimile: 713.615. 5461

Attorneys for Appellee, KNA Partners,
A Texas Joint Venture




9
                      CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this Sur-reply contains 1,969 words, excluding the words not included in the word
count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1). This is a computer-
generated document created in Microsoft Word, using 14-point typeface for all
text, except for footnotes which are in 12-point typeface. In making this certificate
of compliance, I am relying on the word count provided by the software used to
prepare the document as well as a hand count of words contained in the charts
included in the brief.

                                          /s/ Catherine B. Smith
                                          Catherine B. Smith




                                         10
                        CERTIFICATE OF SERVICE

      The undersigned certifies that on May 14, 2015, the foregoing Sur-Reply of
Appellee was served electronically on the following parties in accordance with the
requirements of the Texas Rules of Appellate Procedure:

Susan Desmarais Bonnen
susan.bonnen@texasattorneygeneral.gov
Philip Arnold
Ken Paxton
Charles E. Roy
James E. Davis
Randall K. Hill
P.O. Box 12548
Austin, Texas 78711-2548
       Attorneys for Appellant
       Via Electronic Service



                                        /s/ Catherine B. Smith
                                        Catherine B. Smith


US 3451667v.1




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