Reversed and Remanded and Opinion filed July 25, 2019.




                                    In The

                      Fourteenth Court of Appeals

                             NO. 14-17-00619-CV

              TEXAS CENTRAL PARTNERS, LLC, Appellant
                                      V.
                      GRIMES COUNTY, TEXAS, Appellee

                   On Appeal from the 506th District Court
                          Grimes County, Texas
                       Trial Court Cause No. 33,725

                               OPINION
      Grimes County filed a common-law public-nuisance suit against two
companies, alleging that they unreasonably interfered with the public’s use of
roads and seeking a permanent injunction. One of the companies appeals from the
trial court’s final judgment granting the county’s summary-judgment motion and
issuing a permanent injunction. Concluding that the summary-judgment evidence
did not conclusively prove the county’s claim for common-law public nuisance, we
reverse and remand.
                  I. FACTUAL AND PROCEDURAL BACKGROUND
      After contractors doing surveying work for a project of appellant/defendant
Texas Central Partners, LLC, placed pins and markings in various county
roadways, Grimes County sued Texas Central and defendant Pacheco Koch
Consulting Engineers, Inc. (the “Texas Central Parties”), asserting a single claim
for common-law public nuisance. Grimes County sought only injunctive relief.
The trial court granted Grimes County’s motion for a traditional summary
judgment on this claim and granted a final summary judgment, permanently
enjoining the Texas Central Parties and their agents from “performing survey(s) or
other studies which damage, alter, or impair county-maintained rights of way.”
The trial court also overruled all of Texas Central’s objections to Grimes County’s
summary-judgment evidence. Pacheco Koch has not appealed. In this appeal,
Texas Central asserts that (1) the trial court erred in granting summary judgment in
Grimes County’s favor, and (2) the trial court erred in overruling Texas Central’s
objections to two affidavits.

                                   II. ANALYSIS

A.    Did the trial court err in overruling Texas Central’s objections to the
      affidavits of Ben Leman and Gregory Blake?
      In its second issue, Texas Central asserts that the trial court erred in
overruling its objections to Grimes County’s summary-judgment evidence.

      The trial court overruled Texas Central’s objections that the following
statements, contained in the affidavits of Ben Leman or Gregory Blake, are
conclusory:

           “[Texas Central] and its agents intentionally interfered with . . .
            county roads.”



                                         2
            “Such actions by [the Texas Central Parties] impaired the use of the
             roads and rendered the roads less commodious for public use while
             [the Texas Central Parties] were performing such acts.”

            “Such actions put the individuals performing the work at risk as well
             as the traveling public.”

            “Such actions have resulted in unreasonable interference with a right
             common to the public and an unreasonable discomfort or annoyance
             of persons with ordinary sensibilities. Such actions put at risk the
             public health, safety and welfare and they impair [Grimes County’s]
             ability to maintain county roads.”
Because these statements are conclusory, they cannot support a summary judgment
in Grimes County’s favor, and the trial court abused its discretion in overruling
Texas Central’s objections.1 See McIntyre v. Ramirez, 109 S.W.3d 741, 749–50
(Tex. 2003); Heritage Operating, L.P. v. Barbers Hill Indep. Sch. Dist., 496
S.W.3d 318, 330–32 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

        The trial court overruled Texas Central’s objections to the following
statements, contained in the affidavits of Leman or Blake, on the ground that the
testimony is speculative:

     “[T]he specific surveying techniques utilized would likely not have been
      permitted given their invasive and offensive nature which materially affected
      the road surface.”
       If additional pins and markings were placed in roadways without the Grimes
        County’s knowledge, they “could cause devastating effects and irreparable
        injury should one of our heavy duty hydraulic machines uncover one of the

1
  Because conclusory statements are incompetent to support a summary judgment, we could not
use these statements as a basis to support the trial court’s summary judgment, even if Texas
Central had failed to object and even if Texas Central did not argue that these statements are
conclusory on appeal. See Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013). The statements
by Leman and Blake that “[i]nadequate safety precautions were taken which left the public and
the surveyors at risk of harm,” likewise are conclusory and incompetent. See id.



                                              3
      pins in the right of way easement, unintentionally turning it into a fast
      moving projectile.”

Because these statements are speculative, the trial court abused its discretion in
overruling Texas Central’s objections to them. See Natural Gas Pipeline Co. of
Am. v. Justiss, 397 S.W.3d 150, 156, 161 (Tex. 2012).

B.    Did the trial court err in granting summary judgment?
      In its first issue, Texas Central asserts that the trial court erred in granting a
traditional summary judgment in Grimes County’s favor. To prove its entitlement
to a summary judgment granting a permanent injunction, Grimes County had to
conclusively prove that Texas Central is liable under at least one claim. See Etan
Indus., Inc. v. Lehmann, 359 S.W.3d 620, 625 n.2. (Tex. 2011) (holding that
permanent injunction is available only if liability is established under a claim);
Roper v. Jolliffe, 493 S.W.3d 624, 633 (Tex. App.—Dallas 2015, pet. denied)
(concluding that trial court lacks discretion to issue permanent injunction unless
plaintiff establishes at least one valid claim). The only claim that Grimes County
pleaded in its live pleading was common-law public nuisance. In its summary-
judgment motion, Grimes County relied upon its common-law public-nuisance
claim and asserted that the trial court should grant a permanent injunction because
Grimes County had established the required elements of (1) a wrongful act, (2)
imminent harm, (3) irreparable injury, and (4) the absence of an adequate remedy
at law. Under its first issue, Texas Central argues that the summary-judgment
evidence does not conclusively prove Texas Central’s liability under the common-
law public-nuisance claim or any of the four elements required to show entitlement
to a permanent injunction.

      In a traditional motion for summary judgment, if the movant’s motion and
summary-judgment evidence facially establish its right to judgment as a matter of

                                           4
law, the burden shifts to the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). To facially establish its right to judgment
as a matter of law, Grimes County had to conclusively prove each of the essential
elements of its common-law public-nuisance claim. See MMP, Ltd. v. Jones, 710
S.W.2d 59, 60 (Tex. 1986) (per curiam); Security Nat. Ins. Co. v. Waloon Inv.,
384 S.W.3d 901, 905 (Tex. App.—Houston [14th Dist.] 2012, no pet.). 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).

      In our de novo review of a trial court’s summary judgment, we consider all
the evidence in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007).

      To be entitled to summary judgment based on its common-law public-
nuisance claim, Grimes County had to conclusively prove the existence of a public
nuisance, which is “a condition that amounts to ‘an unreasonable interference with
a right common to the general public.’”        Jamail v. Stoneledge Condominium
Owners Ass’n, 970 S.W.2d 673, 676 (Tex. App.—Austin 1998, no pet.) (quoting
Restatement (Second) of Torts § 821B(1) (1979)).

      Attached to Grimes County’s summary-judgment motion as Exhibit A were
three photographs. The first photograph is a close-up of a Pacheco Koch metal
pin, apparently pressed into the surface of a roadway. The second photograph

                                          5
shows the surface of a roadway with a painted cross on it and a pin in the center of
the cross. The third photograph shows a wooden stick with a flag just beyond the
paved part of a roadway next to a painted cross with a pin near the edge of the
paved portion of a roadway.

      Attached to Grimes County’s summary-judgment motion as Exhibit B is the
affidavit of Ben Leman, the County Judge for Grimes County. After removing the
inadmissible parts of Leman’s affidavit testimony discussed in section II.A. above,
Leman testified as follows on issues relevant to Texas Central’s liability for a
common-law public nuisance:

    On or about April 1, 2016, employees or agents of Pacheco Koch were
     discovered to have driven metal pins into the roadway surface of one or
     more county-maintained roadways, including Grimes County Roads 178,
     215, 302, and 313. These employees and agents also had painted markings
     in one or more county-maintained roadways. This conduct caused damage
     to these roadways. Upon discovery of the pins and markings in the county
     roadways, the Pacheco Koch employees were instructed to immediately stop
     their damage to county roads and to make repairs.

    Texas Central authorized the conduct described in the last paragraph as part
     of its ongoing effort to survey real property for the proposed purpose of
     acquiring an interest in certain real property upon which Texas Central
     intends to construct a high-speed railway line between Dallas and Houston
     (the “Project”). Texas Central had contracted with Towill, Inc., an entity
     that subcontracted the work in question to Pacheco Koch.

    Texas Central and its agents caused damages to county roads without even
     attempting to contact local authorities for permission or to notify such
     authorities that they would be doing work on county roads. The Texas
     Central agents were discovered only after a citizen noticed them working on
     a county road.

    The Texas Central Parties failed to consult with, or request permission from,
     Grimes County or its designee for road and bridge issues before placing the
     metal pins and painting markings in the county-maintained roadways.
     Grimes County requires the submission and approval of a permit for

                                         6
      activities that will cause damage to county-maintained roads or interfere
      with right-of-way purposes. The Texas Central Parties should have sought a
      permit for the proposed survey activities. These actions affected the surface
      of the roads in question, and they impacted Grimes County’s maintenance of
      them.

    The Texas Central Parties’ actions in parking vehicles in the county rights of
     way, having individuals exit their vehicles in such rights of way, having
     such individuals walking, standing, or working in such rights of way and
     roadways, having such individuals tampering with the causeways of county
     roads by inserting pins or painting markings on such roads all put not only
     the individuals at risk of being struck by the traveling public but also (1)
     jeopardized the safety of the traveling public who will be forced to negotiate
     such obstacles and ignore any markings upon the pavement and (2) impaired
     the maintenance of such rights-of-way wherein foreign, strange, and
     unauthorized objects and markings have altered such roadways, especially
     when no notice to Grimes County has been given and no permit obtained.
      Attached to Grimes County’s summary-judgment motion as Exhibit C is the
affidavit of Gregory Blake, the Road and Bridge Administrator for Grimes County.
After removing the inadmissible parts of Blake’s affidavit testimony discussed in
section II.A. above, Blake testified as follows on issues relevant to Texas Central’s
liability for a common-law public nuisance:

    Blake reviewed Texas Central’s Motion for Summary Judgment. Although
     the repairs of County Roads 178, 215, 302 and 313 were made and initially
     accepted by Blake on behalf of Grimes County as indicated in the motion,
     that motion failed to include the concerns Blake expressed about the
     degradation of the repairs on County Road 302.

    The photographs attached to Blake’s affidavit were taken on or about July
     27, 2016, less than five months after the damages were discovered on April
     1, 2016. The attached photographs are a fair and accurate representation of
     the markings and the pin located on County Road 302 as they appeared on
     July 27, 2016. Blake has concerns that the repairs were insufficient and will
     further degrade upon the continued use of the roads.

    The monument marker on County Road 302 has not been removed and the
     sealant applied did not adhere to the roadway or was not mixed correctly. A
                                         7
      representative of Towill, Inc. made additional markings in the roadway
      following the repairs. A monument pin remained in the location on County
      Road 302 despite Blake’s request that all identifying markers and pins
      within roadways or easements be removed.2

Attached to Blake’s affidavit are three photographs. The first shows what appears
to be a painted cross marking on a paved road, without any pin in the center. The
second photograph shows a painted arrow and other painted markings on the edge
of a paved road. The markings in this photograph apparently are the additional
markings on County Road 302 that Blake says were made after the repairs. The
third photograph appears to be of a pin placed in an unpaved area.                 In his
deposition, Blake testified that this pin is in a ditch on the side of County Road 302
that is unpaved but still part of the right of way.3

      The summary-judgment evidence does not address the following issues:
      (1)    How many pins and markings were put on the roadways?
      (2) How many of the pins and markings were in a traffic lane of a
      roadway?4
      (3) To what extent do the pins interfere with the public’s ability to travel
      on the roadway?
      (4) To what extent do the markings interfere with the public’s ability to
      travel on the roadway?
      (5) What specific danger, if any, do the pins or markings pose to a vehicle
      traveling over them?
      (6) In the ordinary course of surveying, do the surveyors remove the pins
      and markings after they are finished?

2
  Some of Blake’s testimony duplicates Leman’s testimony.    That testimony has not been
restated here.
3
 Attached as Exhibit D to Grimes County’s summary-judgment motion are maps relating to the
Project. Texas Central incorporated into its summary-judgment response excerpts from the
depositions of Leman and Blake.
4
  Some photographs suggest that at least some of the markings and pins were placed on the
roadway’s shoulder.

                                            8
      (7)   How much does a pin weigh?
      (8) How likely is it that a vehicle traveling over a roadway with a pin in it
      might launch the pin into the air?

      We do not suggest that the answers to all of these questions are necessary to
prove a public nuisance. But, the summary-judgment evidence does not contain
much information about the pins and markings and the extent to which either of
these items interfere with a right common to the general public. The photographs
in the summary-judgment record reasonably could be viewed as showing that
vehicles could travel safely on a road with these pins and markings. The cases
Grimes County cites do not involve such a slight inference. See, e.g, Jamail, 970
S.W.2d at 676 (alleged public nuisance was a locked gate across a public
roadway).

      On this record and under the applicable standard of review, we conclude that
the summary-judgment evidence does not conclusively establish “a condition that
amounts to ‘an unreasonable interference with a right common to the general
public.’” See Curtis v. Baker, No. 14-17-00859-CV, 2018 WL 6684263, at *4–6
(Tex. App.—Houston [14th Dist.] Dec. 20, 2018, no pet.) (mem. op.); Jamail, 970
S.W.2d at 676. Because the summary-judgment evidence does not establish as a
matter of law that Texas Central is liable under the common-law public-nuisance
claim, the trial court erred in granting summary judgment and in granting a
permanent injunction. See Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 625 n.2.
We need not and do not address Texas Central’s argument that the evidence does
not prove as a matter of law (1) a wrongful act, (2) imminent harm, (3) irreparable
injury, and (4) the absence of an adequate remedy at law. See id.

      Grimes County relies upon an alleged public statement by a representative of
Texas Central. But, our appellate record does not contain this statement, and with


                                         9
limited exceptions not relevant to this item, an appellate court may not consider
matters outside the appellate record. See In re C.C.E., 530 S.W.3d 314, 317 n.1.
(Tex. App.—Houston [14th Dist.] 2017, no pet.).

      Grimes County suggests that if this court reverses the trial court’s judgment,
we would be condoning the activities of which Grimes County complains or we
would be suggesting that Grimes County has no remedy at all or is limited to
money damages.       The issue we address is whether the summary-judgment
evidence conclusively establishes a common-law public nuisance. By concluding
that it does not, we do not condone any activity. We do not rule that Grimes
County has no remedy or is limited to money damages, nor do we address whether
Grimes County may have any other claim as a result of the activities of which it
complains.

                                 III. CONCLUSION

      The trial court abused its discretion in overruling the objections to the
summary-judgment evidence discussed in section II.A. above. To this extent, we
sustain the second issue, and we need not address the remainder of the second
issue. Because the summary-judgment evidence does not conclusively establish a
common-law public nuisance, the trial court erred in granting Grimes County’s
summary-judgment motion. Therefore, we sustain the first issue, reverse the trial
court’s judgment, and remand for further proceedings in accordance with this
opinion.




                                       /s/    Kem Thompson Frost
                                              Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.

                                         10
