                                 NO. 07-04-0532-CV

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL E

                                  MARCH 24, 2006

                        ______________________________


                          KODY KOTHMANN, APPELLANT

                                          V.

              THE CITY OF LUBBOCK AND GARY ROTHWELL D/B/A
                  ROTHWELL CONSTRUCTION, APPELLEES


                      _________________________________

            FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2001-512,714; HONORABLE MACKEY K. HANCOCK, JUDGE
                      _______________________________

Before REAVIS and CAMPBELL, JJ. and BOYD, S.J.1


                             MEMORANDUM OPINION


      Presenting three issues, Kody Kothmann contends the trial court erred in rendering

summary judgment that he take nothing against the City of Lubbock and Gary Rothwell


      1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
d/b/a Rothwell Construction. By his issues, he contends (1) the trial court erred in denying

his motion for continuance, (2) the granting of summary judgment was error because the

pleadings are insufficient to support the judgment, and (3) granting summary judgment was

error under the record and the law. We affirm the order granting summary judgment in

favor of the City of Lubbock and reverse and remand in part the order granting summary

judgment in favor of Rothwell.


       In connection with his residential development on Gary Avenue, the City of Lubbock

required Rothwell to acquire drainage easements on undeveloped acreage across Gary

Avenue and owned by a third party. Pursuant to Rothwell’s contracts, on January 24,

2000, the owner of the undeveloped tract executed a drainage easement in favor of the

City of Lubbock for the use of the public as a perpetual and permanent drainage

easement. The easement covered 5 strips, each 50 feet by 200 feet described by metes

and bounds in the easement recorded in the Official Public Records. Then, in May 2000,

Kothmann acquired the adjoining undeveloped tract from the grantor of the easement by

deed which, among other things, provided the deed was “subject to any and all restrictions,

and encumbrances, easements, covenants and conditions” filed of record. Exhibit B to the

Kothmann deed included a partial plat which reflected, among other survey matters, one

of the five drainage easements as recorded in Volume 6554 at page 243. By letter of

January 26, 2001, a City of Lubbock engineer advised Kothmann that the dedication of the

easements was in response to a platting requirement that Rothwell obtain the drainage

easements. As material here, the letter advised Kothmann as follows:

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       •      the natural direction of flow is eastward across his property to the
              playa lake located southwest of 98th Street and University Avenue;
       •      provided Kothmann the names of the contractor and engineer for
              Rothwell and that work would commence on February 12, 2001; and
       •      provided other information regarding the opening of the drainage
              easements.


Kothmann filed suit on February 8, 2001; however, his request for a temporary restraining

order was denied and the case was dismissed for lack of prosecution on June 20, 2001.

The case was reinstated on October 3, 2002. By amended petition filed March 23, 2004,

Kothmann sought damages for trespass and other claims.


       By his first issue, Kothmann contends the trial court erred in not granting his motion

for continuance. We disagree. A trial court has broad discretion in setting reasonable

deadlines in summary judgment proceedings. McClure v. Attebury, 20 S.W.3d 722, 729

(Tex.App.--Amarillo 1999, no pet.). We review the denial of a continuance based on a

clear abuse of discretion standard. See Hatteberg v. Hatteberg, 933 S.W.2d 522, 526

(Tex.App.--Houston [1st Dist.] 1994. no writ). Considering that Kothmann filed suit on

February 8, 2001, but did not file his trial petition until March 23, 2004, we conclude the trial

court did not abuse its discretion in denying the motion for continuance. Moreover, the

motion was not supported by affidavit as required by Rule 251 of the Texas Rules of Civil

Procedure. Kothmann’s first issue is overruled.


       The claims against the City of Lubbock and Rothwell are not entirely common. As

to the City of Lubbock, Kothmann expressly waived his trespass claim but (1) alleged

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private nuisance, (2) sought a declaration that the City of Lubbock violated section 11.086

of the Texas Water Code and damages therefrom, (4) sought attorney’s fees, and (5) a

declaration that the City of Lubbock’s conduct constituted an unconstitutional taking without

compensation in violation of Article 1, Section 17 of the Texas Constitution. Kothmann’s

claims against Rothwell included (1) trespass, (2) private nuisance, (3) negligence, (4) a

declaration that Rothwell violated section 11.086 of the Texas Water Code and damages

therefrom, and (5) attorney’s fees.


       In reviewing a summary judgment, this Court must apply the standards established

in Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985). For a party

to prevail on a motion for summary judgment, he must conclusively establish the absence

of any genuine question of material fact and that he is entitled to judgment as a matter of

law. Tex. R. Civ. P. 166a(c). A movant must either prove all essential elements of his

claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential

element of the non-movant's cause of action. Randall's Food Markets, Inc. v. Johnson,

891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to summary

judgment, the non-movant has the burden to respond to the motion for summary judgment

and present to the trial court any issues that would preclude summary judgment. City of

Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Barbouti v.

Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ denied). Where,

as here, a summary judgment does not specify or state the grounds relied on, the summary

judgment will be affirmed on appeal if any of the grounds presented in the motion are

                                             4
meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Insurance Co. Of N. Am.

v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ).


                          City of Lubbock’s Summary Judgment


       By his second issue, Kothmann contends the pleadings are insufficient to support

the judgment and by his third issue, contends the granting of summary judgment was error

under the record and the law. We disagree.


       By its first amended answer, among other things, the City of Lubbock asserted that

Kothmann consented to the drainage easements and any burden resulting therefrom. By

its motion for summary judgment, among other grounds, the City of Lubbock alleged that

Kothmann could not recover under any alleged cause of action because his predecessor

in title consented to the drainage easement, and the deed to Kothmann was expressly

subject to the drainage easement.


       The evidence included a copy of the easement and a copy of the deed to

Kothmann. Significant here, portions of the drainage easement document include a

recitation that in addition to monetary consideration, consideration also included “benefits

accruing and to accrue to the remainder of GRANTORS’ property . . . .” Also, the drainage

easement expressly recognized that the City of Lubbock reserved the right to act and

determine the drainage grade and direction of flow of waters on the real estate. Controlling

here, the deed to Kothmann expressly provided:


                                             5
      This conveyance, however, is made and accepted subject to any and all
      restrictions, encumbrances, easements, covenants and conditions, if any,
      relating to the hereinabove described property as the same are filed for
      record in the County Clerk’s Office of Lubbock County, Texas.


(Emphasis added). Immediately below the grantor’s signature the copy of the deed to

Kothmann provides:


      AGREED AND ACCEPTED TO:
      /s/
      KODY KOTHMANN

      /s/
      JANET KOTHMANN


      In addition to being bound to the provisions of the easement by constructive notice

as discussed in Williams v. Thompson, 152 Tex. 270, 256 S.W.2d 399, 403 (1953),

Kothmann’s agreement and acceptance of the deed upon acquisition of the property

constitutes his express recognition of the burdens on the property imposed by the

drainage easement. The easement gave the City of Lubbock the right to do such things

as reasonably necessary for the full enjoyment of the easement, and the extent to which

incidental rights may be exercised depends on the object and purpose of the grant and

whether such rights are limited by its terms. See Phillips Petroleum Company v. Terrel,

404 S.W.2d 927, 929 (Tex.Civ.App.--Amarillo 1966, no writ).


       Next, considering Kothmann’s claims of private nuisance and unconstitutional

taking and violation of section 11.086 of the Water Code, we note that according to the


                                           6
affidavit of R. Keith Smith, City Engineer, included as summary judgment evidence, the

City of Lubbock did not conduct any work on the project by its employees, contractors, or

otherwise. The summary judgment evidence also includes a copy of a letter dated

January 26, 2001, whereby the City of Lubbock notified Kothmann that Rothwell had

contracted with the engineer and the contractor to perform the work. Kothmann did not

respond with any summary judgment evidence to the contrary. Kothmann’s second and

third issues are overruled as to the City of Lubbock.


                             Rothwell’s Summary Judgment
                      Trespass, Negligence, and Nuisance Claims


       Based on Kothmann’s pleadings regarding execution and provisions of the drainage

easement and his acquisition of the remainder of the property and other summary

judgment evidence discussed above, except for Kothmann’s claims for trespass,

negligence, and nuisance, the above analysis, holding, and disposition of issues two and

three are incorporated herein for all purposes.


      By his first amended answer, Rothwell presented special exceptions claiming that

Kothmann’s allegations of trespass, nuisance, and negligence were vague. Although the

allegations are vague when taken in the context of the drainage easement, that

determination will not support summary judgment because whether pleadings fail to state

a cause of action may not be determined by summary judgment. Massey v. Armco Steel

Co., 652 S.W.2d 932, 934 (Tex. 1983). A party should be given an opportunity to amend


                                            7
after special exceptions have been sustained. Hartsfield v. Wisdom, 843 S.W.2d 221, 224

(Tex.App.--Amarillo 1992, writ denied). Based on the pleadings, summary judgment was

improperly granted on Kothmann’s claim for trespass, nuisance, and negligence. To that

extent only, issues two and three are sustained as to Rothwell.


       Accordingly, the order granting summary judgment in favor of the City of Lubbock

as to all claims by Kody Kothmann is affirmed; the order granting summary judgment in

favor of Gary Rothwell, individually and d/b/a Rothwell Construction is reversed in part and

the cause is remanded for further proceedings on Kody Kothmann’s claims of trespass,

nuisance, and negligence only;2 in all other respects, the order is affirmed.



                                          Don H. Reavis
                                            Justice




       2
      Kothmann’s issue under § 11.086 of the Water Code being overruled is not
remanded for further proceedings.

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