
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-05-00311-CV





Wiegand Hermanos, Perforadores, S.A., Appellant


v.


City of Lockhart, Appellee





FROM THE DISTRICT COURT OF CALDWELL COUNTY, 274TH JUDICIAL DISTRICT
NO. 03-071B, HONORABLE JACK H. ROBISON, JUDGE PRESIDING




M E M O R A N D U M   O P I N I O N


	This appeal arises from a lawsuit filed by the City of Lockhart against Wiegand
Hermanos, Perforadores, S.A. ("Wiegand"), a Mexican corporation, over the unauthorized
subdivision of real property in Caldwell County.  Frederick Wiegand, Jr., is the president and sole
employee of the company, and lives on the property owned by the company. (1)  The company filed a
counterclaim for conversion and a constitutional-takings claim for the removal of dirt and rock fill
when the City installed a wastewater line across Wiegand's property.  The district court granted
summary judgment in favor of the City as to the takings claim.  On appeal, Wiegand contends that
the trial court erred in granting the City's motion for summary judgment by concluding that there
was not a taking, and in finding no evidence (i) of the intent required for a valid takings claim and
(ii) that the taking was for a public use.  For the reasons that follow, we affirm the judgment.

BACKGROUND

 The following facts are undisputed.  On March 15, 2002, the City and Frederick
Wiegand, Jr., on behalf of the company, entered into a contract for a wastewater pipeline easement. 
The agreement allowed the City to install and maintain a wastewater line across the property. 
Among other things, the agreement provided that (i) any brush or timber that was cut "must either
be stacked at a location along the easement as requested by [Wiegand], or chipped and distributed
along the easement, or otherwise disposed," (ii) the City "will allow no trash, debris, or refuse from
its operations to exist on the ground," and (iii) after construction of the line, the City "will restore
the surface as nearly as practicable to its original condition, so as not to affect normal drainage."  The
City paid Wiegand $1680 in consideration for the easement.  In June and July 2003, the City
installed the pipeline, removing the excavated material.
	Meanwhile, on April 22, 2003, the City filed its original petition challenging
Wiegand's efforts to subdivide the property into various tracts of land for development in violation
of the City's municipal code.  In its petition, the City sought injunctive relief relating to Wiegand's
refusal to allow the City entry to the land to inspect and effect repairs to the City's water lines. 
Holding the certificate of convenience and necessity for the water supply in the area, the City alleged
that it sought to repair the water distribution line and thereby preserve the integrity of its water
distribution system.  In June, Wiegand filed an answer and thereafter a counter petition, alleging
claims for conversion for removing "valuable" property, to wit, the excavated dirt and rocks from
the premises, and for nuisance for the operation of a shooting range in the vicinity.  In September,
Wiegand amended its counter petition to allege a claim for conversion and "the taking of the dirt and
gravel" in violation of Article 1, Section 17 of the Texas Constitution.  See Tex. Const. art. I, § 17. 
Wiegand complains that the City did not have the right to remove the excavated material from the
property. 
	The City moved for summary judgment on the takings claim.  In its motion, the City
urged that as a matter of law Wiegand was unable to prove the elements required for it to prevail on
its takings theory and that there were no genuine issues of material fact.  The takings claim was
severed from the original suit prior to the grant of the summary judgment in favor of the City and
is the only claim before us on appeal.

ANALYSIS

 Wiegand claims that the district court erred in granting summary judgment in favor
of the City because there was sufficient evidence to create a fact question regarding the intent to take
and whether the taking was for a public use.  Specifically, Wiegand contends that the contract
granting the easement to the City does not give the City ownership rights to the displaced material
excavated in the process of installing the pipeline and that therefore the City "took" its property
without just compensation.  Despite the language of the contract, Wiegand claims that his
understanding was that the contractor would leave the fill in mounds on his property for his use. 
This understanding was based on conversations with a representative of the contractor in June or July
2003 when the City's contractor was digging the ditch for the pipeline.  The City responds that the
excavated material was removed in compliance with the contract and that no taking occurred. 
 The City moved for summary judgment pursuant to both Rule 166a(c) and Rule
166a(i).  We review the trial court's summary judgment de novo.  Provident Life & Accident Ins. Co.
v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  To prevail on a motion for summary judgment under
Rule 166a(c), the movant must show that no genuine issue of material fact exists and that the movant
is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Provident Life, 128 S.W.3d at
215-16; Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).  Applying familiar
standards, we take as true all evidence favorable to the non-movant.  Rhone-Poulenc, Inc. v. Steel,
997 S.W.2d 217, 223 (Tex. 1999).  We resolve any doubts about the existence of a genuine issue of
material fact in a light most favorable to the non-movant.  Id.; Nixon v. Mr. Prop. Mgmt. Co., Inc.,
690 S.W.2d 546, 548-49 (Tex. 1985).
 Under Rule 166a(i), a party may move for summary judgment on the ground that
there is no evidence of one or more essential elements of a claim or defense on which an adverse
party would have the burden of proof at trial.  Tex. R. Civ. P. 166a(i).  Unless the respondent
produces summary judgment evidence raising a genuine issue of material fact, the court must grant
the motion.  Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).
	When the trial court does not specify the basis for its summary judgment, as here, the
appealing party must show it is error to base the judgment on any ground asserted in the motion. 
Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).  Because the trial court's order does
not specify the grounds for its summary judgment, we must affirm the summary judgment if any of
the theories presented to the trial court and preserved for appellate review are meritorious.  Provident
Life, 128 S.W.3d at 216.
	Any issue relied upon to avoid the movant's entitlement to summary judgment must
be expressly presented by written answer or response to the motion.  McConnell v. Southside Indep.
Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 (Tex. 1979) ("the non-movant must expressly present to the trial court any reasons
seeking to avoid movant's entitlement. . . .").  Thus, any issues not expressly presented to the trial
court shall not be considered on appeal as grounds for reversal.  Tex. R. Civ. P. 166a(c).
 Article 1, Section 17 of the Texas Constitution provides that "[n]o person's property
shall be taken, damaged or destroyed for or applied to public use without adequate compensation
being made, unless by the consent of such person."  Tex. Const. art. I, § 17.  Whether particular facts
are enough to constitute a taking is a question of law.  Mayhew v. Town of Sunnyvale, 964 S.W.2d
922, 936 (Tex. 1998).  In the usual situation, the governmental entity compensates the property
owner before taking his property, either by paying a mutually agreed price or by paying the value as
determined in a formal condemnation proceeding.  Westgate, Ltd. v. State, 843 S.W.2d 448, 452
(Tex. 1992).
	To establish a takings claim, Wiegand had the burden of proving (1) the City
intentionally performed certain acts, (2) that resulted in a taking of property, (3) for public use.  See
Steele v. City of Houston, 603 S.W.2d 786, 791-92 (Tex. 1980).  In its motion for summary
judgment, the City sought to demonstrate its entitlement to summary judgment by negating any
intent to take under eminent domain.  The City also challenged each of the elements on which
Wiegand had the burden of proof at trial.
	The City bases its motion on the easement agreement which provides the City with
both the authority and the duty to remove any "trash, debris, or refuse" that remained after the
installation of the pipeline on Wiegand's property.  Thus, the City contends it was acting within the
scope of the agreement and there was no taking.  Attached to its motion, the City appended
Wiegand's amended counter petition, excerpts of Mr. Wiegand's deposition testimony, the easement
agreement, and an affidavit of Vance Rodgers, the City's assistant city manager.  In his affidavit,
Rodgers averred that, as a representative of the City, he personally entered into the contract with
Wiegand on March 15, 2002:

The agreement provided the City with an easement on Mr. Wiegand's property for
the purpose of the installation of waste and sewer lines.  In consideration for the
conditions set forth in the agreement, the City paid to Wiegand $1,680.


In June and July of 2003, the City hired a contractor to install a pipeline on
Wiegand's property.  As a result of the construction, there was excess dirt and gravel
on Wiegand's property.  The City transported the excess dirt and rock off of
Wiegand's property pursuant to the terms of the attached easement.  Under the
agreement the City was not permitted to allow any refuse to remain on site, other than
timber.  Moreover, the City was obligated to restore the surface condition of the
property to its pre-installation condition.  We made sure that the contractor hired by
the City knew that any excavated dirt was to be removed from the property so that
Wiegand's property was restored to its original condition.  

The easement agreement included the following "special terms and conditions" among its
provisions:
1.	Grantee, in constructing the sewer main or pipeline along said easement, will
bury said pipeline so that the top of same is at least three (3) feet below the
surface of the earth, except that grantee shall have the right to construct and
maintain manholes on and to the pipeline above and below the surface of the
earth with the permanent easement described in Exhibits "A" and "B."

. . . .

5.	Any brush or timber cut by grantee in its operations within the easement must
either be stacked at a location along the easement as requested by grantors, or
chipped and distributed along the easement, or otherwise disposed.  Grantee will
allow no trash, debris, or refuse from its operations to exist on the ground.

6.	After construction of the said line, grantee will restore the surface as nearly as
practicable to its original condition, so as not to affect normal drainage.

	One of the no-evidence grounds raised by the City in its motion for summary
judgment was that the City acted pursuant to its easement contract and there was no intent to take,
only an intent to act within the scope of its contract.  On appeal, Wiegand asserts that this is a
property rights case and not a breach-of-contract case (2) and that the City did not act in good faith
when it took the excavated material.  Wiegand's arguments on appeal, however, vary from those
presented to the trial court.  We shall consider only those issues and grounds Wiegand expressly
presented to the trial court.
	Wiegand contends that genuine issues of material fact exist concerning "the terms of
the contract and the performance required by the City" and "whether the material taken by the City
was taken for public use."  Wiegand recited that it entered into the easement agreement, was
compensated for the easement, and that the agreement was vague and ambiguous as to the removal
of the fill and its value.  Wiegand does not contend that it did not enter into a contract with the City
or that it was not compensated.  Nor does Wiegand contend that the City was unlawfully on the
property or unauthorized to install the pipeline.
	Wiegand urges that, based on the conversation with the foreman at the time of the
work, the City was aware that Wiegand claimed ownership of the material.  In his deposition,
attached to Wiegand's response, Mr. Wiegand testified that he informed a representative of the
contractor in June 2003--a year after entering into the contract--that he wanted the material and that
it had value, and that the City intentionally removed the material.  In his affidavit, Mr. Wiegand
averred that in June 2003 the foreman had orders to haul the material off of Wiegand's property and
"dump" it across the fence on the City's land and that in July 2003, Mr. Wiegand measured and
determined the value of the "mounds of caliche dirt" produced by the pipeline installation.
	Wiegand also claims that the terms of the contract are vague and ambiguous. 
Whether a contract is ambiguous is a question of law.  Coker v. Coker, 650 S.W.2d 391, 393 (Tex.
1983).  If the contract is so worded that it can be given a certain or definite legal meaning or
interpretation, then it is not ambiguous.  Id.  Determining whether a provision is ambiguous requires
that we examine the entire contract in light of the circumstances that existed when the parties formed
the contract.  Id.; State Farm Fire & Cas. Co. v. Vaughan, 968 S.W.2d 931, 933 (Tex. 1998).  When
a contract is unambiguous, we must defer to the language of the contract, not a party's interpretation
of that language.  Allodial Ltd. P'ship v. North Tex. Tollway Auth., 176 S.W.3d 680, 683 (Tex.
App.--Dallas 2005, pet. denied).
	In construing the contract as a whole, we find that it is not ambiguous and that the
City was required to remove the excavated material in accordance with the terms of the contract. (3) 
The contract required the City to remove any "trash, debris, or refuse" derived from its operation and
to restore the surface of the property to its original condition so as to have no impact on drainage. 
Moreover, the contract distinguished the treatment of the excavated material from brush or timber. 
With regard to any brush or timber that was cut, Wiegand expressly reserved the right to compel the
City "as requested" to stack, chip, or dispose of it.  Wiegand also reserved all rights to the
development of "oil, gas and other minerals" on the property. 
	By entering into the contract and receiving compensation pursuant to the contract,
Wiegand consented to the State's acting according to the contract.  In a contractual context, the State
does not have the requisite intent under constitutional-takings jurisprudence when it acts within the
procedures outlined in the contract.  General Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d
591, 598-99 (Tex. 2001).  "Rather the State is acting within a color of right under the contract and
not under its eminent domain powers."  Id. at 599.  As this Court explained in State v. Steck Co.:

It is clear that the stamps were delivered to the State, and its possession of them was
by virtue of the contract and not by virtue of a taking within the meaning of Art. I,
Sec. 17.  Appellee by making the contract, manufacturing the stamps and delivering
them to the State did so voluntarily and with its own consent, and can not now say
the stamps were taken under the power of eminent domain.
236 S.W.2d 866, 869 (Tex. Civ. App.--Austin 1951, writ ref'd) (citations omitted); see also Sun Oil
Co. v. United States, 572 F.2d 786, 818 (Ct. Cl. 1978) ("The concept of a taking as a compensable
claim theory has limited application to the relative rights of party litigants when those rights have
been voluntarily created by contract."); J.D. Hedin Constr. Co. v. United States, 456 F.2d 1315, 1329
(Ct. Cl. 1972) (same).  Where the State does not have the intent to take under its eminent domain
powers, but only has an intent to act within the scope of the contract, it is not a taking.  Green Int'l
v. State, 877 S.W.2d 428, 434 (Tex. App.--Austin 1994, writ dism'd by agr.).
	Because the City was acting under colorable contractual rights, it did not have the
requisite intent to take Wiegand's property under any eminent domain powers.  See Little-Tex, 39
S.W.3d at 599; Green Int'l, 877 S.W.2d at 434-35.  The City was not exercising its power of eminent
domain, but was exercising its contractual rights.  The City met its summary judgment burden on
the defense to Wiegand's takings claim.  Accordingly, Wiegand's constitutional takings claim must
fail.
	Wiegand argues that, should this Court find that there is a contract or agreement
between the parties, there is a disputed fact issue concerning the City's good faith.  Even assuming
that there is a question about the City's intent to act within the scope of its contract, this issue was
not raised before the trial court and, further, Wiegand failed to adduce a scintilla of evidence so as
to raise a question of material fact in response to the City's motion.  Although Wiegand produced
Mr. Wiegand's affidavit along with excerpts of his testimony, it failed to adduce or point to evidence
regarding any of the terms or the performance of the contract.  The only evidence adduced regarding
the contract was a conversation Mr. Wiegand had with the foreman for the contractor over a year
after the execution of the contract.  In sum, Wiegand presented no evidence to raise a material fact
question as to the scope of the contract or the City's intent.

CONCLUSION

	We overrule Wiegand's issues and affirm the trial court's judgment.


					__________________________________________
 	Jan P. Patterson, Justice
Before Justices B. A. Smith, Patterson and Puryear
Affirmed
Filed: May 19, 2006
1.   In his deposition, Frederick Wiegand testified that he is also "director and administrator"
of the company and receives no salary. He inherited the property from his mother when she died in
1991 and "put it in a Mexican corporation" to "protect it" from the City.  All references to
"Wiegand" are to the appellant company.  References to "Frederick" or "Mr. Wiegand" are to the
individual.
2.   The state is immune from a suit for money damages based on an alleged breach of contract
unless the state has expressly given its consent to be sued.  See, e.g., Federal Sign v. Texas S. Univ.,
951 S.W.2d 401, 405 (Tex. 1997).
3.   Indeed, it is more likely to implicate constitutional-takings jurisprudence for the City to fail
to remove the debris: "[w]hen the government causes matter or debris, such as earth, sewage, or
water, to cover a portion of private property, or when such material somehow interferes with
activities or potential activities on the land, it may constitute a constructive taking that requires
compensation."  2A Julius L. Sackman, Nichols on Eminent Domain § 6.01[14][c] at 6-54 (3d ed.
2005).

